                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-0374
                                  Filed April 5, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CORVELLE BEEKS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, D. J. Stovall (jury trial)

and Peter A. Keller (sentencing), Judges.



      A defendant appeals his conviction asserting counsel provided ineffective

assistance. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Vogel, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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VOGEL, Judge.

       Corvelle Beeks was charged with possession with intent to deliver a

controlled   substance    (methamphetamine)      as   an    habitual   offender   and

possession of a controlled substance (marijuana), second offense. Following a

jury trial, he was convicted on count one of the lesser-included offense of

possession of a controlled substance (methamphetamine) and convicted on

count two of possession of a controlled substance (marijuana), second offense,

both in violation of Iowa Code section 124.401(5) (2014). He appeals claiming

his attorney provided ineffective assistance in allowing the jury to be instructed

on lesser-included offenses on count one.

       To prove counsel was ineffective, Beeks must show counsel failed to

perform an essential duty and he was prejudiced as a result.           See State v.

Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). Our review of the claim is de novo,

but when such claim is made on direct appeal, we must determine whether the

record is adequate to address the claim. State v. Ary, 877 N.W.2d 686, 704

(Iowa 2016).

       Beeks claims counsel was ineffective in not pursuing an all-or-nothing

defense because he admitted on the witness stand at trial to having the

methamphetamine in his possession; he simply denied he intended to distribute

it. He claims because he admitted to the elements of the lesser-included offense

at trial, it was a prejudicial error for counsel to allow the jury to be instructed on

the lesser-included offense.

       Pursuant to Iowa Rule of Criminal Procedure 2.6(3), it is the court’s duty to

instruct the jury on the lesser-included offenses that the accused could be found
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guilty of under the indictment and evidence presented at trial. A defendant can

waive the submission of lesser-included offenses. State v. Wallace, 475 N.W.2d

197, 199, 201 (Iowa 1991) (noting a defendant does not have to prove the waiver

of lesser-included instructions is knowing, intelligent, and voluntary; “[c]ounsel’s

professional statement to the trial court that the defendant waives such

instructions is enough”).    However, “[t]he State also may have a legitimate

interest in having a lesser-included offense, which satisfies the statutory

elements test, submitted to the jury. . . . The State should not be forced to

accept that result because of a unilateral election by the defendant.” State v.

Greer, 439 N.W.2d 198, 200 (Iowa 1989). Thus, the State must consent to a

defendant’s waiver of jury instructions on lesser-included offenses. Wallace, 475

N.W.2d at 199.

         As the State points out in this case, we do not know whether counsel

discussed the all-or-nothing defense with Beeks, and if so, what advice was

given.    We also do not know whether the State would have opposed the

defense’s request to waive lesser-included charges, if such a request had been

made. Because we conclude the record on appeal is not adequate for us to

address this claim, we preserve it for postconviction-relief proceedings.      See

State v. Bentley, 757 N.W.2d 257, 264 (Iowa 2008) (“Even a lawyer is entitled to

his day in court, especially when his professional reputation is impugned.”

(citation omitted)).

         We affirm Beeks’s convictions and sentence.

         AFFIRMED.
