                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0538
                            Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALEXANDER CAES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen

(plea) and Paul L. Macek (sentencing), Judges.



      A defendant appeals his drug-related felony conviction and sentence.

AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

      Alexander Caes challenges his guilty plea and sentence for possession of

pseudoephedrine     with    the   intent   that     it    be   used    to   manufacture

methamphetamine. Caes alleges defense counsel was ineffective in failing to

explain the terms of the plea agreement and failing to file a motion in arrest of

judgment. Because the information conveyed in the written plea agreement and

plea-hearing   colloquy     contradicts    Caes’s        allegations   about   counsel’s

performance, we affirm.

      Narcotics investigators from Scott, Clinton, and Jackson Counties were

tracking the repeated purchases of pseudoephedrine by several individuals

during the spring of 2015. Their investigation culminated with the search of a

methamphetamine laboratory at the residence where Caes lived with his father

near Maquoketa.     Caes arrived during the execution of the search warrant,

carrying a bottle of lye.   According to the minutes of evidence filed with the

State’s trial information, witnesses interviewed at the lab suggested Caes had

“completed a one pot methamphetamine cook that morning.”

      Investigators noted the NPLEX (National Precursor Log Exchange)

showed Caes had purchased pseudoephedrine forty-eight times and had been

blocked from purchasing fourteen times between May 2012 and April 2015. The

NPLEX recorded Caes as having nine pseudoephedrine purchases and three

pseudoephedrine blocks in Scott County during that time frame.

      In October 2015, the Scott County Attorney charged Caes with possession

of pseudoephedrine with the intent that it be used to manufacture a controlled

substance, in violation of Iowa Code section 124.401(4)(b) (2015), a class “D”
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felony, and conspiracy to commit a nonforcible felony, in violation of sections

706.1(1)(a) or (b) and 706.3, a class “D” felony. In January 2016, the parties filed

a memorandum of plea agreement, in which Caes agreed to plead guilty to

possession the precursor and the State agreed to dismiss the conspiracy count.

The written agreement set out the sentencing concessions as follows:

            This is an open plea.        The State may make any
      recommendation at the time of sentencing. The State agrees to
      recommend concurrent sentencing to the drug related matters in
      Jackson County, Iowa which was part of this investigation. At a
      minimum, the Defendant shall be screened for placement in the
      Residential Correctional Facility.

      The written agreement further stated: “Defendant understands any period

of incarceration now or hereafter imposed in this case may carry a minimum

period of one-third of the sentence before the Defendant would be eligible for

parole pursuant to section 124.413 of the Code of Iowa.” Caes signed the written

plea agreement. His attorney also signed below the statement: “I have advised

the Defendant of all particulars set out above and of the consequences thereof.”

      At the plea hearing, the district court advised Caes the precursor

possession offense was “punishable by an indeterminate term of incarceration

not to exceed five years.” When the court asked: “Do you understand that?”

Caes responded, “Yes.”      The court also discussed the plea agreement with

Caes, who assured the judge nobody had made any promises or predictions to

him about what the sentencing court would do. Caes also told the court he was

satisfied with the advice and counsel of his attorney. Caes assured the court he

had no trouble reading, writing, or understanding the English language.
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       After the court carefully performed the colloquy required by Iowa Rule of

Criminal Procedure 2.8(2)(b), Caes confirmed he wished to plead guilty. Caes

then described in his own words what he did to commit the offense: “On January

through April 2015 I was in Scott County, and I bought Sudafed, and I was using

it to help with my dad’s manufacture of controlled substance, meth.”

       The court accepted Caes’s guilty plea and ordered a presentence

investigation (PSI) report. The PSI report recommended incarceration.

       At the sentencing hearing, the State expressed its agreement with the PSI

report’s recommendation.     The State then reported: “As the plea agreement

contemplated, the defendant was screened for the Residential Corrections

Facility, and having previously spent time there and having previously not been

successful on probation, he was denied placement there.”            The State then

followed the terms of the plea agreement by recommending Caes’s

indeterminate five-year term be served concurrently with the term he received for

the Jackson County case.         Defense counsel recommended a suspended

sentence.

       The district court accepted the State’s recommendation, offering the

following rationale for the prison sentence: “Given your criminal history, your prior

issues with probation, your substance abuse history, the nature and

circumstances of this crime, for general and specific deterrence, it is the

judgment of the court that you should be incarcerated.” Caes now appeals his

conviction and sentence, alleging he received ineffective assistance of counsel in

the plea process.
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      Caes’s failure to file a motion in arrest of judgment bars a direct challenge

to his guilty plea. See State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). But we

will consider his challenge through the lens of ineffective assistance of counsel.

See id. at 133. Our review is de novo. See State v. Tate, 710 N.W.2d 237, 239

(Iowa 2006).       We often reserve claims of ineffective assistance for

postconviction-relief proceedings so counsel can defend against the accusations,

but we will decide the claims on direct appeal if the record is adequate. See id.

at 240. The record here permits us to address Caes’s claim on direct appeal.

      Caes must show by a preponderance of the evidence (1) his plea counsel

failed to perform an essential duty and (2) counsel’s failure resulted in prejudice.

See Straw, 709 N.W.2d at 133, 138. To establish a breach of duty, Caes must

show counsel’s performance fell below the standard of a reasonably competent

attorney.   See Strickland v. Washington, 466 U.S. 668, 687 (1984).            The

measure of prejudice is whether there existed a reasonable probability that, but

for counsel’s omission, Caes would not have pleaded guilty and would have

insisted on going to trial. See Straw, 709 N.W.2d at 135–36 (discussing Hill v.

Lockhart, 474 U.S. 52, 59 (1985)).

      Caes argues his plea “should be found to have not been knowingly and

voluntarily made” because he did not understand an “open plea” meant the court

could send him to prison. He contends nowhere in the written plea agreement or

the plea-hearing discussion was he informed in “plain language” that prison was

one of the possible outcomes.

      His contention is not borne out by the record. The written agreement

explained the State would recommend “concurrent sentencing” and “at a
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minimum” that he be screened for placement at a residential correctional facility.

The agreement also explained “any period of incarceration” imposed might carry

a one-third mandatory minimum. Likewise, the plea-taking court informed Caes

his offense was punishable by five years of incarceration.        The district court

satisfied the requirements of rule 2.8(2)(b), leaving no ground for Caes’s attorney

to object to the plea colloquy. See State v. Reynolds, 670 N.W.2d 405, 411

(Iowa 2003) (holding trial counsel is not ineffective for failing to raise meritless

issue).

          Caes claims his “yes” or “no” answers to the court’s questions indicate he

was “doing nothing more than answering by rote” and do not prove he

understood his guilty plea could result in a prison sentence. After reviewing the

totality of the written plea and the plea colloquy, we have no reason to doubt the

veracity or competency of Caes’s responses. Caes provides no specifics on how

his attorney’s explanation of the plea agreement fell short. Caes does not assert

counsel advised him that prison was not a possible consequence of the “open

plea” agreement. In assessing claims of ineffective assistance of counsel, we

examine a defendant’s conduct as well as that of his attorney. See State v. Rice,

543 N.W.2d 884, 888 (Iowa 1996). Caes cannot call foul now. He had the

chance to inform the court if he did not understand the consequences of his plea

or if counsel truly did not inform him of the potential for imprisonment. But he did

not do so. Given the information about potential incarceration contained in the

record, Caes is unable to establish counsel breached an essential duty in

allowing him to enter a guilty plea.

          AFFIRMED.
