                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1215
                               Filed June 25, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KELLY GRANT SMART,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wayne County, Martha L. Mertz

(plea) and David L. Christensen (sentencing), Judges.




      Kelly Smart appeals from a judgment and sentence following his plea of

guilty to possession of marijuana, third offense. AFFIRMED.



      Matthew C. Moore of Law Offices of Matthew C. Moore, Chariton, for

appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, and Alan M. Wilson, County Attorney, for appellee.




      Considered by Doyle, P.J., Mullins, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                         2


DOYLE, P.J.

      Kelly Smart appeals from the judgment and sentence entered following his

plea of guilty to possession of a controlled substance (marijuana), third offense,

an aggravated misdemeanor, in violation of Iowa Code section 124.401(5)

(2011).   He was sentenced to an indeterminate term of incarceration not to

exceed two years. Smart argues his trial counsel was ineffective by failing to

object to the State’s recommendation of incarceration, which deviated from the

plea agreement.    We affirm Smart’s conviction and preserve for a possible

postconviction-relief proceeding Smart’s claim of ineffective assistance of consel.

      I. Background Facts and Proceedings.

      Smart entered into a written plea of guilty to possession of marijuana. The

written “Waiver of Rights and Guilty Plea For Possession of Controlled

Substance” form, signed by Smart and his counsel, states, in part:

             The Court has the discretion to accept or reject any plea
      agreement made between the State and me. This is not a
      bargained plea. I have been informed by Alan Wilson, who is
      Prosecuting Attorney, that the State will recommend the following
      sentence and disposition:
             (1) A fine of $_______, the statutory surcharge and the
      $5.00 D.A.R.E. surcharge. (See Iowa Code [§] 911.2).
             (2) Incarceration for a period of ___ days, with credit for
      previously served. [Paragraphs (1) and (2) are crossed-out by one
      handwritten “X”]
             (3) Payment of court costs.
             (4) Payment of court appointed attorney costs.
             (5) Victim restitution, if any.
             (6) My license will be revoked for 180 days
             (7) Other “Court to decide my sentencing after a review of
      the PSI and sentencing hearing.” [Quoted text is handwritten]
             The foregoing paragraph reflects the entire understanding of
      the State’s recommendation to the Court.
                                        3


The written plea is dated May 16, 2013, and file-stamped May 21, 2013, the day

of the first plea hearing.

       Smart’s written waiver of rights and guilty plea were presented to the court

at the first plea hearing. Smart acknowledged he had second thoughts after

executing the agreement.      Smart stated he did not realize the presentence

investigator could make a sentencing recommendation. During the course of the

hearing, Smart also acknowledged he had had a confrontation with his attorney

earlier in the day. After considerable discussion with Smart, the court decided to

give everyone some “thinking time” and continued the plea hearing.

       The same judge presided over the second plea hearing a few weeks later.

The written waiver and guilty plea previously presented to the court was again

considered. After a plea colloquy, the court found Smart’s plea to be voluntary

and supported by a factual basis. The court ordered a presentence investigation

(PSI) at Smart’s request, and a sentencing hearing was set.

       A different judge presided over the sentencing hearing. When the district

court asked for the State’s sentencing recommendation, the prosecutor

responded as follows:

              Thank you, your Honor. Your Honor, I think . . . Mr. Smart’s
       criminal history speaks for itself. He’s had an extended history of—
       criminal activity, and typically my sense as a prosecutor is Mr.
       Smart still is unwilling to abide by the laws of the state. And,
       consequently, it’s the State’s recommendation that Mr. Smart be
       sentenced to an indeterminate term not to exceed two years; that
       his custody be transferred to the director of adult corrections and
       Oakdale, Iowa, designated as the reception center; that he be
       ordered to pay the statutory mandatory minimum fine of $625, plus
       the statutory 35% surcharge and the costs of this action, including
       court appointed attorney’s fees; that pursuant to statute he be
       ordered to pay the $10 drug awareness education fee and the $125
       law enforcement initiative surcharge.
                                          4


               Your Honor, I believe this is the only appropriate sentence in
       this case. It’s going to be able to protect the public from future
       offenses by Mr. Smart, as well as give Mr. Smart an opportunity to
       rehabilitate himself through substance-abuse-treatment programs
       within the prison system.

Smart’s counsel made no objection.

       On appeal, Smart contends the prosecutor breached the plea agreement

and his attorney was ineffective in failing to object to the breach.

       II. Discussion.

       We review claims of ineffective assistance of counsel de novo. See State

v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).            To prevail, Smart must show

(1) counsel breached an essential duty and (2) prejudice resulted.              See

Strickland v. Washington, 466 U.S. 668, 687 (1984). The claim fails if either

element is lacking. Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).

       Generally, we do not resolve claims of ineffective assistance of counsel on

direct appeal. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). These claims

are typically better suited for postconviction relief proceedings that allow the

development of a sufficient record and permit the accused attorney to respond to

a defendant’s claims. See State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011).

If we determine the claim cannot be addressed on appeal, we must preserve it

for a postconviction relief proceeding, regardless of our view of the potential

viability of the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We

find the record insufficient to review Smart’s claim in this direct appeal.

       Here, the written plea states the prosecuting attorney “will recommend the

following sentence.” Immediately following are seven paragraphs enumerating

various sentencing provisions. Paragraph (2), the provision for incarceration, is
                                       5


crossed-out by a handwritten “X” and the space providing for the number of days

of incarceration is left blank. The document is a far cry from a pledge by the

State that it would stand mute on the issue of incarceration. The document was

not signed by the prosecutor. Furthermore, we will not, and cannot, consider

Smart’s outside-the-record assertion that “the State offered to make no

sentencing recommendation at his sentencing hearing.”       See Rasmussen v.

Yentes, 522 N.W.2d 844, 846 (Iowa Ct. App. 1994) (the court does not consider

issues based on information outside the record). The same goes for Smart’s

assertion that he was assured by his trial counsel that the State would not enter

an argument for any sentence of incarceration. See id. With no testimony from

Smart, his trial counsel, or the prosecutor, we simply do not have enough to

decide Smart’s ineffective assistance of counsel claim. Accordingly, we affirm

Smart’s conviction and preserve this claim for a possible postconviction relief

proceeding.

      AFFIRMED.
