                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0550
                              Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FREDDIE HELAI,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Freddie Helai appeals his conviction of lascivious acts with a child and the

sentence imposed.     CONVICTION AFFIRMED; SENTENCE VACATED AND

REMANDED FOR RESENTENCING.




       John J. Wolfe of Wolfe Law Office, Clinton, for appellant.

       Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



       Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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MULLINS, Judge.

       Freddie Helai appeals his conviction, following a guilty plea, of lascivious

acts with a child and the sentence imposed. He argues his plea was entered

unknowingly and involuntarily because he was misadvised of the potential

immigration consequences1 of his plea and his counsel rendered ineffective

assistance in failing to ensure he was accurately advised and by failing to file a

motion in arrest of judgment to challenge his plea based on the alleged

deficiencies.2   He also argues the court relied on improper considerations in

imposing sentence.

       As Helai acknowledges, by failing to file a motion in arrest of judgment to

challenge the plea, he did not preserve error on his challenge. See Iowa R. App.

P. 2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a guilty plea

proceeding by motion in arrest of judgment shall preclude the defendant’s right to

assert such challenge on appeal.”). However, Helai also claims his attorney was

ineffective in allowing the alleged plea-related errors and for failing to file a motion

in arrest of judgment to challenge the plea. “[I]f the guilty plea resulted from

ineffective assistance of counsel, the defendant can challenge the plea under the



1 While the court advised Helai at the plea hearing he would not suffer immigration
consequences because he was from an “American protectorate,” upon the record
made in the district court, it is unclear whether Helai is a United States citizen.
2 As the State points out, recent legislation, effective July 1, 2019, limits our ability

to consider appeals of convictions when a defendant has pled guilty and forecloses
our ability to consider ineffective-assistance-of-counsel claims on direct appeal.
See 2019 Iowa Acts ch. 140, §§ 28(a)(3), 31 (codified at Iowa Code
§§ 814.6(1)(a)(3), .7 (2019)). However, the State filed its brief before our supreme
court decided whether the legislation is retroactive. The court recently ruled the
new provisions do “not apply to a direct appeal from a judgment and sentence
entered before July 1, 2019.” State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
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rubric of ineffective assistance of counsel.” State v. Weitzel, 905 N.W.2d 397, 401

(Iowa 2017); accord State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010)

(“Ineffective-assistance-of-counsel claims are an exception to the traditional error-

preservation rules.”). We review claims of ineffective assistance of counsel de

novo and will only exercise appellate review if the record is adequate to determine

the claim. State v. Kuhse, ___ N.W.2d ___, ___, 2020 WL 250542, at *4 (Iowa

2020).

         To succeed on his ineffective-assistance-of-counsel claim, Helai must

establish “(1) that counsel failed to perform an essential duty and (2) that prejudice

resulted.” Id.; accord Strickland v. Washington, 466 U.S. 668, 687 (1984). We

“may consider either the prejudice prong or breach of duty first, and failure to find

either one will preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017)

(quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)). When challenging a

guilty plea through a claim of ineffective assistance of counsel, “in order to satisfy

the prejudice requirement, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he or she would not have pleaded guilty

and would have insisted on going to trial.” State v. Straw, 709 N.W.2d 128, 138

(Iowa 2006).

         “Before accepting a plea of guilty, the court must address the defendant

personally in open court and inform the defendant of, and determine that the

defendant understands,” among other things, “[t]hat a criminal conviction . . . may

affect a defendant’s status under federal immigration laws.” Iowa R. Crim. P.

2.8(2)(b)(3). If Helai is a United States citizen, then we conclude Helai’s counsel

was under no duty to ensure he was advised of the immigration consequences of
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his plea or challenge the plea on that basis because the consequences would not

apply to him. Next, we find the record inadequate to even determine whether Helai

is a United States citizen and the consequences apply to him. As such, we are

unable to assess counsel’s effectiveness. Even if the record affirmatively showed

Helai is not a United States citizen, then we would find the record inadequate to

decide whether Helai was prejudiced by the alleged breach of duty and would

repeat our position that the “circumstances underlying . . . the defendant’s

willingness to go to trial are facts that should be permitted to be more fully

developed” in a postconviction-relief proceeding. State v. Delacy, 907 N.W.2d

154, 160 (Iowa Ct. App. 2017) (en banc); see also State v. Deneve, No. 18-1479,

2019 WL 1932585, at *2 (Iowa Ct. App. May 1, 2019); State v. Carter, No. 18-

0838, 2019 WL 325812, at *2 (Iowa Ct. App. Jan. 23, 2019); State v. Gaston, No.

16-1957, 2017 WL 4317310, at *2 (Iowa Ct. App. Sept. 27, 2017); State v. Iddings,

No. 15-1597, 2017 WL 246049, at *5 (Iowa Ct. App. June 7, 2017); State v.

Bascom, No. 15-2173, 2017 WL 1733115, at *1 (Iowa Ct. App. May 3, 2017); State

v. Taylor, No. 16-0762, 2017 WL 1735682, at *1–2 (Iowa Ct. App. May 3, 2017).

Thus, we preserve the ineffective-assistance claim, and Helai may pursue it in a

postconviction-relief proceeding, if he so chooses.3



3 Citing State v. Kress, 636 N.W.2d 12 (Iowa 2001), Helai argues, under the
scenario he is not a United States citizen, because the court did not advise him of
the immigration consequences of his plea, the appropriate remedy is to set aside
his conviction and sentence and allow him to plead anew. That would be true if he
challenged his plea by way of motion in arrest of judgment or the court failed to
adequately advise him of his obligation to file such a motion to challenge his plea.
However, because neither occurred here, his only avenue for relief is through a
claim of ineffective assistance of counsel. Because we find the record inadequate
to determine the claim, he must pursue it in a postconviction-relief proceeding.
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       Next, Helai argues the court considered unproven and irrelevant information

contained in the minutes of evidence in imposing sentence, namely that the court

considered the facts that the victim had been sexually abused by others previously

and the victim’s mother knew of the abuse by Helai and took no action. The State

concedes error, and we agree. We therefore vacate the sentence imposed and

remand the matter to the district court for resentencing.

       CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

FOR RESENTENCING.
