                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-1849
                                  Filed June 5, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASON DONALD HILBERT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan,

District Associate Judge.



      Jason Donald Hilbert appeals his sentence after pleading guilty to theft in

the fourth degree. AFFIRMED.



      Kevin Hobbs, West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Vogel, C.J., and Mullins and Bower, JJ.
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VOGEL, Chief Judge.

       In April 2018, Jason Donald Hilbert was charged with third-degree theft after

taking approximately $600 from his employer. He pled guilty to a lesser-included

offense, fourth-degree theft, and was sentenced to a one-year term of

incarceration, to run consecutively with his “parole matter.” On appeal, he raises

two ineffective-assistance-of-counsel claims.

       Hilbert first discusses potential due process issues involving his guilty plea

and sentencing. He admits he failed to file a motion in arrest of judgment within

the specified time period and thus, may only challenge his guilty plea as an

ineffective-assistance claim. See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s

failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of

judgment shall preclude the defendant’s right to assert such challenge on

appeal.”).

       Normally, we review challenges to guilty pleas for correction of errors at law.

State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016). However, when such challenge

is raised as an ineffective-assistance claim, our review is de novo. State v. Delacy,

907 N.W.2d 154, 157 (Iowa Ct. App. 2017). To prevail on an ineffective-assistance

claim, the applicant must show counsel failed to perform an essential duty and

such failure resulted in prejudice. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)

(citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).

       In order to establish the first prong of an ineffective-assistance claim,
       the defendant must show that trial counsel’s performance was
       outside the range of normal competency. This task is not an easy
       one as “there is a strong presumption trial counsel’s conduct fell
       within the wide range of reasonable professional assistance.”
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State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003) (quoting DeVoss v. State, 648

N.W.2d 56, 64 (Iowa 2002)); see also State v. Oetken, 613 N.W.2d 679, 683 (Iowa

2000) (“To rebut this presumption defendant must present an affirmative factual

basis establishing inadequate representation.”).       The defendant must also

establish he or she was prejudiced by counsel’s inadequate representation and

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Ledezma v. State, 626

N.W.2d 134, 145 (Iowa 2001) (quoting Strickand, 466 U.S. at 694). While Hilbert

discusses potential issues involving his guilty plea and sentence, he fails to

articulate how his counsel’s performance was inadequate and fails to establish

prejudice. Because no cognizable claim has been raised, we find Hilbert has failed

to prove any due process violations that would support his first ineffective-

assistance claim.

       Next, Hilbert asserts counsel was ineffective by improperly advising him that

he could serve his sentence in prison rather than county jail. “If an ineffective-

assistance-of-counsel claim is raised on direct appeal from the criminal

proceedings, we may decide the record is adequate to decide the claim or may

choose to preserve the claim for postconviction proceedings.” Straw, 709 N.W.2d

at 133 (citing Iowa Code § 814.7(3) (2005)). Hilbert concedes this claim should be

preserved because the record is not developed. The State agrees. Therefore, we

preserve this claim for possible postconviction relief, “where a full evidentiary

hearing may be had and where counsel will have an opportunity to respond to

defendant’s charges.” State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978); see also

State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective
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assistance of counsel claims are best resolved by postconviction proceedings to

enable a complete record to be developed and afford trial counsel an opportunity

to respond to the claim.”).

       AFFIRMED.
