                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0249
                             Filed October 15, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANNY DEAN DOTY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.



       Danny Doty appeals following his plea of guilty to domestic abuse assault,

second offense. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Jennifer Miller, County Attorney, and Sarah Tupper, Assistant County

Attorney, for appellee.



       Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
                                         2


POTTERFIELD, P.J.

       Danny Doty appeals following his written plea of guilty to domestic abuse

assault, second offense, contending plea counsel was ineffective in failing to

ensure the district court conducted a colloquy regarding his prior conviction for

domestic abuse assault as described in State v. Kukowski, 704 N.W.2d 687,

691–92 (Iowa 2005). Doty cannot show he was prejudiced by the failure of plea

counsel to insist upon an in-court colloquy regarding his prior conviction.

Accordingly, Doty’s ineffective-assistance-of-counsel claim fails.

       I. Background Facts.

       On January 15, 2014, Doty entered a written guilty plea to aggravated

misdemeanor domestic abuse assault, in violation of Iowa Code sections 708.1,

.2A(1), and .2A(3)(b) (2013). In his written plea, Doty stated he had “a prior

conviction for domestic abuse assault within the last 12 years.” The minutes of

testimony include the following:

              The Defendant was convicted of three prior offenses of
       Domestic Abuse Assault in the Marshall County District Court within
       the last twelve years. The Defendant was convicted of Domestic
       Abuse Assault on February 1, 2011. The Defendant was convicted
       of Domestic Abuse Assault on March 23, 2012. The Defendant
       was convicted of Domestic Abuse Assault, Second Offense, on
       October 29, 2012. The witness will lay the foundation for certified
       copies of the judgment entries to be entered into evidence at trial
       herein.

Pursuant to the plea agreement, the State dismissed a first-degree harassment

charge.    The district court subsequently sentenced Doty to two years

imprisonment.

       On appeal, Doty contends plea counsel was ineffective for failing to

challenge his admission to a prior domestic-abuse-assault conviction. He argues
                                           3


the district court is required to identify the prior conviction to which a defendant is

stipulating for purposes of sentence enhancement.

         II. Standard of Review.

         While a defendant’s challenge to a guilty plea is generally reviewed for

corrections of errors at law, we review infective-assistance-of-counsel claims de

novo. State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011). We normally preserve

such claims for postconviction relief proceedings, but will consider the merits on

direct appeal where the record is adequate. Id.

         III. Merits.

         In order to prove a claim of ineffective assistance of counsel, a defendant

must prove counsel failed to perform an essential duty and prejudice resulted.

State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Failure to prove either

prong is fatal to the claim.     State v. Shanahan, 712 N.W.2d 121, 142 (Iowa

2006).

         Doty contends his counsel was ineffective in failing to challenge the

enhanced sentence on the domestic-abuse-assault charge. He alleges he did

not properly admit a prior domestic-abuse-assault conviction and therefore did

not voluntarily or intelligently enter into the guilty plea. He argues the district

court was required to follow the procedure explained in Kukowski and his plea

counsel was ineffective in failing to object to the procedure used here.

         Iowa Rule of Criminal Procedure 2.19(9) provides, in part,

               After conviction of the primary or current offense, but prior to
         pronouncement of sentence, if the indictment or information alleges
         one or more prior convictions which by the Code subjects the
         offender to an increased sentence, the offender shall have the
         opportunity in open court to affirm or deny that the offender is the
                                         4


      person previously convicted, or that the offender was not
      represented by counsel and did not waive counsel.

In Kukowski the court explained,

      The rule [2.19(9)] gives the defendant an opportunity to affirm or
      deny the allegations the State is obligated to prove at the second
      trial. The inquiry providing this opportunity must be conducted in
      open court. If the defendant denies “being the person previously
      convicted,” or asserts that the prior convictions were obtained
      without counsel and counsel was not waived, then the case
      proceeds to the second trial. On the other hand, if the defendant
      affirms the validity of the prior convictions, then the case proceeds
      to sentencing. An affirmative response by the defendant under the
      rule, however, does not necessarily serve as an admission to
      support the imposition of an enhanced penalty as a multiple
      offender. The court has a duty to conduct a further inquiry, similar
      to the colloquy required under rule 2.8(2), prior to sentencing to
      ensure that the affirmation is voluntary and intelligent.

704 N.W.2d at 692.

      In State v. Johnson, 770 N.W.2d 814, 825-26 (Iowa 2009), our supreme

court further addressed the procedure described in rule 2.19(9) and Kukowski.

After the guilt phase of the bench trial, the district court had concluded rule

2.19(9) applied only to a jury trial, not a bench trial. Johnson, 770 N.W.2d at 824.

Our supreme court, however, concluded the court erred in failing to hold a

separate trial on the defendant’s habitual offender status. Id. at 826. But we

note the supreme court stated, “in the absence of an agreement of the parties to

proceed otherwise, the bifurcation procedures explained in Iowa Rule of Criminal

Procedure 2.19(9) and in Kukowski apply in bench trials and jury trials.” Id. at

825. (emphasis added).

      We are faced with neither a bench trial nor a jury trial. Rather, this appeal

involves “an agreement of the parties to proceed otherwise.” Id. Doty entered a

written plea of guilty and admitted a prior domestic abuse conviction. See State
                                        5

v. McBride, 625 N.W.2d 372, 374 (Iowa Ct. App. 2001) (“When McBride

stipulated to those [prior] convictions, he was not pleading guilty to a criminal

offense. A rule [2.8(2)(b)] colloquy was not required for McBride to stipulate to

the fact of his prior convictions.” (citing State v. Brady, 442 N.W.2d 57, 58 (Iowa

1989) (“An admission by a defendant of prior convictions cannot be said to be a

plea of guilty to an habitual offender ‘charge,’ moreover, habitual offender

statutes do not charge a separate offense.”))); cf. Johnson, 770 N.W.2d at 826

n.14 (“Johnson asserts the State is essentially seeking a new trial on the habitual

offender status determination in violation of the constitutional prohibition on

double jeopardy. However, a consideration of habitual offender status is merely

a determination of whether a sentencing enhancement applies.”).

        Doty’s written guilty plea states he understands the nature of the charge

and the mandatory minimum punishment and maximum punishment for the

offense.   This discharges the court’s duty to ensure Doty’s stipulation was

voluntary and intelligent. See State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000)

(holding that where “[t]here is nothing in the record to indicate [the defendant]

failed to understand the nature of an [enhanced sentence], or the significance of

his admission,” the court discharged its duty to inform the defendant as to the

ramifications).   An examination of the minutes of testimony establishes the

domestic abuse assault committed by Doty in 2013 was a second offense that

occurred within twelve years of his first conviction—Doty had two domestic abuse

assault convictions in 2011 and another domestic abuse assault conviction in

2012.

        Doty does not assert he was misinformed of the consequences of
                                       6


affirming his prior conviction.   Nor does he deny the validity of the prior

conviction(s) as set forth in the minutes of testimony. Doty cannot show he was

prejudiced by a failure of plea counsel to insist upon a Kukowski procedure.

Accordingly, Doty’s ineffective-assistance-of-counsel claim fails. See McBride,

625 N.W.2d at 375 (finding any breach of counsel’s duty was without

consequence where even a full rule 2.8(2)(b) colloquy would not have prevented

the defendant from receiving an enhanced sentence). We therefore affirm his

conviction.

      AFFIRMED.
