                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0650
                            Filed February 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LUKAS LAWRENCE PITZER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Margaret L.

Lingreen, Judge.



      A defendant appeals his guilty plea to two charges of delivery of five

grams or less of methamphetamine. AFFIRMED.



      Richard J. Bennett Sr. of Bennett Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, and Alan Heavens, County Attorney, for appellee.



      Considered by Vogel, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

       On April 14, 2014, Lukas Lawrence Pitzer pled guilty to two charges of

delivery of five grams or less of methamphetamine. He has appealed contending

alternatively that the court should not have accepted the plea or that his counsel

was ineffective for allowing him to plead guilty because his medication adversely

affected his decision making.      He contends that the plea was not entered

voluntarily and intelligently and requests that it be set aside and he be allowed to

replead.

   I. Background Facts

       Pitzer had three counts of delivery of five grams or less of

methamphetamine pending against him in Clayton County based on events that

had taken place on October 31, November 27, and November 28, 2012. Pitzer

was incarcerated in Wisconsin, but he was brought back to Iowa to address the

Clayton County charges. A plea agreement was reached that provided he enter

pleas of guilty to two of the three charges with the third to be dismissed. He was

then to be sentenced to two ten-year terms, both of which were to run concurrent

with the charge in Wisconsin. He was also to be given credit for the time served

on the Wisconsin charge.

       The guilty pleas were entered and accepted.         Pitzer waived time for

sentencing and filing a motion in arrest of judgment, and asked for immediate

sentencing. He was sentenced pursuant to the plea agreement.

       During the plea colloquy, Pitzer indicated he was under the care of a

physician in the Wisconsin prison system for treatment of a seizure he had

suffered, depression, and anxiety.    He testified he normally took Prozac and
                                           3


hydroxyzine three times per day and had taken his last dose at 8:00 a.m. that

morning.1 He indicated the medication affected his ability to comprehend, in that

it made it hard for him to concentrate, but “I get it. It just takes a little longer.” He

further stated, “I think I understand what’s being imposed.”            The court had

discussed the plea agreement with counsel prior to the above comments and

when asked if he understood, Pitzer responded, “I believe so. Yes.” He was

further asked if he was comfortable going ahead, and Pitzer replied “yes.” Pitzer

responded to all questions in the colloquy with no indication he had any trouble

hearing or understanding. He did need to look at the trial information to refresh

his memory to establish the factual basis of the charges. He provided a detailed

chronology of events as to the second charge, which involved questions of his

participation as a principal, aider and abettor, or as an accessory after the fact.

Pitzer intelligently discussed what happened and his involvement, and ultimately

entered a plea of guilty by use of an Alford plea proceeding.

    II. Scope of Review

       A challenge to a plea of guilty is generally reviewed for errors of law, but to

the extent it involves a claim of ineffective assistance of counsel, it is reviewed de

novo. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006).

    III. Error Preservation

       Failure to move for an arrest of judgment bars direct appeal of a guilty

plea. State v. Lucas, 323 N.W.2d 228, 232-33 (Iowa 1982). Pitzer filed no

motion in arrest of judgment. A claim of ineffective assistance of counsel is an


1
 Pitzer was also prescribed doxepin, but because the jail did not have any in stock, he
had not taken any.
                                         4

exception to the usual requisites of error preservation.       State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006).

   IV. Discussion

           A. The Court’s Acceptance of the Guilty Plea

       Pitzer first contends the court erred in accepting his guilty plea because he

was unable to knowingly and voluntarily enter it. There is no contention that

Pitzer was incompetent, as was the case in Lucas. 323 N.W.2d at 233. Pitzer

commented that the drugs he had taken slowed down his ability to respond. He

also said he was comfortable to proceed. He responded to each question asked

and explained in some detail what happened that resulted in the charge to which

he pled guilty.      There was very little to alert the court that Pitzer did not

comprehend the proceeding or that his plea was not knowingly and intelligently

entered.    Error was not preserved, and the court did not commit error in

accepting the plea.

           B. Ineffective Assistance of Counsel In Allowing the Plea of Guilty to
              be Entered

       Pitzer alternatively contends his counsel was ineffective in failing to object

to the guilty plea.    Ineffective assistance of counsel requires the claimant to

establish that counsel failed to perform an essential duty and that failure resulted

in prejudice. State v. Ondayog, 722 N.W.2d 778, 785 (Iowa 2006). Pitzer is

relying solely on the record made of the guilty plea and sentencing colloquy.

Outside of the comment that the medication slowed his ability to comprehend,

there is little to no support of the allegation that the plea was not made knowingly

and intelligently.
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       Generally in the context of an attack on a plea of guilty to establish

prejudice, the claimant must establish that but for counsel’s error, he would not

have pled guilty but instead would have elected to stand trial. State v. Carroll,

767 N.W2d 638, 644 (Iowa 2009). It is difficult to contemplate a more favorable

plea agreement than what Pitzer received other than outright dismissal. Pitzer

has never asserted that he wants his plea set aside so he can go to trial.

However, he has had no opportunity to make a record of such an assertion.

       Pitzer has requested his claim of ineffective assistance of counsel be

preserved for postconviction relief. There is a preference for preserving such a

claim for postconviction relief. Tate, 710 N.W.2d at 240. Whenever the record is

adequate, the court may decide the claim on direct appeal. Id.

       Pitzer’s request to preserve the claim of ineffective assistance of counsel

was made to enable him to fully develop the record in a postconviction action.

Pitzer has a right independent of the plea colloquy to establish the effect of his

medication on his ability to make an intelligent plea and his counsel’s knowledge

of its impact, as well as the right to make a record of his desire to go to trial if

that, in fact, is his desire.   In that sense, the record before the court is

inadequate. As in Tate, all that is available in the record is the transcript of the

plea and the sentencing proceedings.         See id.   It is insufficient to establish

ineffective assistance of counsel or that Pizter did not enter a knowing and

intelligent plea. To the extent that a collateral attack can be made based on an

ineffective assistance of counsel claim on a more complete record, the issue of
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ineffective-assistance-of-counsel   is   preserved   for   a   postconviction-relief

proceeding.

      AFFIRMED.
