                    IN THE COURT OF APPEALS OF IOWA

                                 No. 16-2194
                              Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM POLTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Angeline Wilson,

District Associate Judge.



      A defendant appeals his conviction for possession of marijuana.

AFFIRMED.




      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       William Polton appeals his conviction for possession of marijuana. Polton

claims his guilty plea was not voluntary and trial counsel was ineffective for

allowing him to plead guilty without knowing the full consequences of the plea. We

find Polton did not preserve the claim of an involuntary plea. We preserve Polton’s

claim of ineffective assistance of counsel for a potential post-conviction relief

hearing.

   I. Background Facts and Proceedings

       On July 28, 2016, Polton was being issued a trespass warning at a Hy-Vee

in Cedar Rapids. Police found an active warrant for his arrest issued by the state

of Colorado. Polton was arrested and transported to jail. Polton admitted he had

marijuana in his pocket. Officers searched Polton and discovered marijuana in his

pocket as well as an additional thirteen grams in a bag in his buttocks.

       Polton was charged by trial information with possession of marijuana and,

on November 28, he filed a written plea of guilty and waiver of rights. He requested

immediate sentencing. The district court sentenced Polton to two days in jail and

revoked his driving privileges for 180 days. Polton now appeals.

   II. Standard of Review

       Claims of ineffective assistance of counsel are reviewed de novo. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective

assistance of counsel, the [defendant] must demonstrate both ineffective

assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it can be

decided on that ground alone without deciding whether the attorney performed
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deficiently.”   Id.   Both elements must be proved by a preponderance of the

evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).

       “We ordinarily review challenges to guilty pleas for correction of errors at

law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).

   III. Error Preservation

       Polton claims his guilty plea was involuntary as he was not informed his

driving privileges would be revoked. The State claims Polton did not properly

preserve the issue for appellate review as he did not file a motion in arrest of

judgment. Polton claims he was not required to file the motion as he was not

advised “that challenges to the plea must be made in a motion in arrest of judgment

and that the failure to challenge the plea by filing the motion within the time

provided prior to sentencing precludes a right to assert the challenge on appeal.”

See Iowa R. Crim. P. 2.8(2)(d). However, Polton signed a document giving up his

right “to challenge or appeal any irregularities or errors in the taking of [his] guilty

plea since such challenge must be ruled prior to sentencing by the filing of a Motion

in Arrest of Judgment.” We find Polton was sufficiently advised by the court and

counsel of his need to file a motion in arrest of judgment in order to challenge his

guilty plea. We find Polton did not preserve this issue for review.

   IV. Ineffective Assistance

       Polton also claims trial counsel was ineffective for failing to advise him his

driving privileges would be suspended for 180 days. We find the record before this

court is not adequate to resolve this claim. Therefore, we affirm Polton’s conviction

but preserve his claim of ineffective assistance of counsel for possible

postconviction-relief proceedings. See State v. DeCamp, 622 N.W.2d 290, 296
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(Iowa 2001) (“Ineffective assistance of counsel claims presented on direct appeal

are typically preserved for [postconviction-relief] proceedings to allow for a full

development of the facts surrounding the conduct of counsel.”).

      AFFIRMED.
