                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1396
                              Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDUARDO BECERRA SANTANNA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      Eduardo Becerra Santanna appeals his sentence following his guilty plea

to the charge of operating a motor vehicle without the owner’s consent, an

aggravated    misdemeanor,        alleging   ineffective   assistance   of   counsel.

AFFIRMED.




      Jeremy B. A. Feitelson of Feitelson Law, L.L.C., West Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



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

       In May 2015, Eduardo Becerra Santanna1 pled guilty to the charge of

operating a motor vehicle without the owner’s consent in violation of Iowa Code

section 714.7 (2015).       Santanna does not dispute that he committed the

underlying offense. Instead, he appeals his sentence,2 arguing his trial counsel

was ineffective by incorrectly stating to the court at sentencing that Santanna

was on probation. While Santanna does not specify the resulting prejudice in his

appeal, presumably he contends that this misstatement resulted in a more

severe sentence from the district court.

       In order to prove an ineffective-assistance-of-counsel claim, an appellant

must show by a preponderance of the evidence that counsel (1) failed to perform

an essential duty and (2) prejudice resulted. Ennenga v. State, 812 N.W.2d 696,

701 (Iowa 2012). We can resolve ineffective-assistance-of-counsel claims under

either prong.    State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).                While

ineffective-assistance-of-counsel      claims     are    generally     preserved      for

postconviction relief actions, we will address them on direct appeal where, as

here, the record is sufficient to permit ruling. See State v. Null, 836 N.W.2d 41,

48 (Iowa 2013).




1
  The arraignment order recites that defendant’s correct name is Eduardo Becerra-
Santana. The presentence investigation report lists a number of aliases, none of which
spells defendant’s last name “Santanna.” We use the spelling the sentencing order and
notice of appeal use.
2
  Santanna requests that the court reverse his conviction and remand for an order of
dismissal or for new trial. However, Santanna’s brief alleges ineffective assistance only
with regard to his sentence, not the underlying guilty plea. Accordingly, error has not
been preserved as to any challenge of the conviction, and we will consider Santanna’s
brief as a request to vacate the sentence and remand for resentencing.
                                         3


       At sentencing, both Santanna’s counsel and the State represented to the

district court that Santanna was on probation at the time of the vehicular offense.

The parties do not dispute, and the record reflects, that this was, in fact, not the

case.3 After hearing the arguments of counsel and a statement from Santanna—

in which Santanna corrected the misstatement regarding his probation status—

the district court sentenced Santanna to two years in prison. In doing so, the

district court reasoned:

              Well, it’s clear, Mr. Santanna, that you are unable to succeed
       on probation. Your record just makes that abundantly clear.
       Probation has been tried, and it has not worked. You can become
       violent.
              While you were out on probation, you were using drugs.
       There really is no other alternative at this point except to sentence
       you to prison based upon your record and your consistent failure to
       comply with the terms of probation.

       Starting in 2007, Santanna’s record contains multiple probation sentences

and subsequent probation violations. The district court clearly considered the

entirety of Santanna’s criminal history and lack of compliance with the terms of

probation when it determined the appropriate sentence. Santanna has not met

his burden to show a reasonable probability that his sentence would have been

different absent his counsel’s misstatement. See Ambrose, 861 N.W.2d at 557

(“To establish prejudice in the context of an ineffective-assistance-of-counsel

claim, a defendant must show a reasonable probability that the result of the

[proceeding] would have been different. The likelihood of a different result must




3
 The offense in this case occurred in February 2015. On November 20, 2014, Santanna
was charged with an unrelated offense, for which a probation sentence took effect in
March 2015.
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be substantial, not just conceivable.” (citation omitted)). Accordingly, we affirm

the district court’s sentence pursuant to Iowa Court Rule 21.26(1)(d).

      AFFIRMED.
