                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0024
                             Filed January 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THEODORE RAY BASCOM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Robert E. Sosalla,

Judge.



      Theodore Bascom appeals following a guilty plea to operating while

intoxicated, asserting plea counsel was ineffective. AFFIRMED.



      Webb L. Wassmer of Wassmer Law Office, P.L.C., Marion, for appellant.

      Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Nicholas Maybanks,

Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, P.J.

      Theodore Bascom appeals following a guilty plea to operating while

intoxicated (OWI). He asserts his plea counsel was ineffective for advising him

to plead guilty, which resulted in a waiver to a direct challenge to the district

court’s denial of his motion to suppress. Given the inadequate record before us,

particularly with regard to the order of events, we decline to address Bascom’s

ineffective-assistance claim on direct appeal. Consequently, we preserve this

claim for possible postconviction-relief proceedings, and we affirm his conviction.

      On July 5, 2012, at approximately 8:38 a.m., Officer Roger Elder

attempted to employ a traffic stop after observing Bascom engage in dangerous

stunts on his motorcycle. Bascom sped away from Officer Elder, and following a

high-speed chase, the motorcycle crashed. Bascom was taken to the hospital

and admitted to the emergency room at approximately 9:15 a.m.

      Amy Engelman, M.D., was Bascom’s treating physician. Because of the

severity of the crash and the fact Bascom was not wearing a helmet,

Dr. Engelman determined he was suffering from a closed head injury and

concussion. The report she was given by the emergency response personnel

indicated Bascom was awake but exhibited confusion, and was not able to keep

his eyes open. Dr. Engelman’s examination at the hospital confirmed Bascom

had a concussion and closed head injury and was under the influence of alcohol.

He was able to say his name and indicate his shoulder and chest hurt but was

not able—or declined—to respond to any further questions.            For example,

Bascom did not answer questions regarding the crash, whether Dr. Engelman or

officers posed the questions.
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       Pursuant to Officer Steven Yardly’s request, Dr. Engelman signed a form

stating she believed Bascom was incapable of consenting to a blood alcohol test

pursuant to Iowa Code section 321J.7 (2011). At the suppression hearing, she

testified she was not privy to any of the conversations between Officer Yardley

and Bascom. She also stated she normally checked on her patients every half

hour and therefore, it was possible she had not seen Bascom for twenty or thirty

minutes prior to signing the form.

       Officer Yardly informed Bascom he was conducting an OWI investigation

and read him the implied consent form. He then requested Bascom to consent to

a preliminary breath test (PBT).        Displaying agitation and using profanity,

Bascom refused. At some point, unclear from this record, Officer Yardly received

the signed certification from Dr. Engleman, and a blood sample was obtained,

which later showed a blood alcohol content of 0.114.            Officer Yardly then

completed a form indicating a blood specimen had been requested at 10:50 a.m.

       On July 19, 2012, Bascom was charged with OWI, second offense, along

with other offenses. His first trial counsel filed a motion to suppress the results of

the blood test, asserting the State did not comply with the statute, Bascom

verbally refused the test, and it was administered two hours after Bascom’s entry

into the hospital. Following a hearing, the district court denied the motion, and a

trial on the minutes was scheduled. Bascom then filed a motion to substitute

counsel, and his second trial counsel entered an appearance. Pursuant to the

advice of counsel, Bascom pleaded guilty to OWI, second offense, in violation of
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Iowa Code section 321J.2(2)(b).1 Bascom appeals his OWI conviction, arguing

his second trial counsel breached an essential duty by advising him to plead

guilty, thereby waiving his ability to challenge the denial of his motion to suppress

on direct appeal.

       We review ineffective-assistance-of-counsel claims de novo.             State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).                 To succeed on this claim the

defendant must prove, first, that counsel breached an essential duty and,

second, he was prejudiced by counsel’s failure. Id. If the defendant’s claim lacks

prejudice we may dispose of the claim on that ground alone. Id. Additionally, we

may decide an ineffective-assistance claim on direct appeal if the record is

adequate to address the claim otherwise, we may preserve the claim for possible

postconviction-relief proceedings.      Id.       To the extent we are addressing the

district court’s analysis of a statute, we review those claims for correction of

errors at law. State v. Mulhenbruch, 728 N.W.2d 212, 214 (Iowa 2007).

       Bascom first asserts he was not incapacitated such that he could refuse

the administration of the test and, in fact, did refuse.         Alternatively, Bascom

argues Dr. Engelman’s certification did not comply with the statutory

requirements, and therefore, the district court erred when denying his motion to

suppress the results of the test.

       Iowa Code section 321J.7 provides:

       A person who is dead, unconscious, or otherwise in a condition
       rendering the person incapable of consent or refusal is deemed to
       have withdrawn the consent provided by section 321J.6, and the

1
 He also pleaded guilty to attempt to elude as an habitual offender, in violation of Iowa
Code sections 321.279(1) and 902.8, and driving while suspended, in violation of Iowa
Code section 321J.21. However, he only appeals his OWI conviction.
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      test may be given if a licensed physician . . . certifies in advance of
      the test that the person is unconscious or otherwise in a condition
      rendering the person incapable of consent or refusal.

(Emphasis added.) The certification signed by Dr. Engelman stated: “[P]atient is

conscious, but in a condition rendering them unable to give consent.” Bascom

takes issue with the fact the form did not state he was incapable of “refusal” and

that Dr. Engelman possibly had not seen Bascom for approximately twenty to

thirty minutes at the time she signed the form.

      We first note that, were we to address the merits of the district court’s

order on the motion to suppress, we would need to decide if substantial evidence

supported its conclusion Bascom was unable to consent or refuse the test. See

State v. Weidner, 418 N.W.2d 47, 48–49 (Iowa 1988). However, the record is

not adequate to address Bascom’s ineffective-assistance claim on direct appeal.

This is due to the murky record with which we are presented. It is unclear what

the timeframe was when Dr. Engelman signed the certification and when Bascom

refused the PBT—that is, whether Dr. Engelman knew of Bascom’s refusal, and

if so, whether that would have had any effect on whether she signed the

certification regarding his incapacitation. Furthermore, we do not have enough

information to address whether plea counsel’s performance breached an

essential duty, given we have no record as to his communications with Bascom

and the decision to plead guilty rather than proceed to trial.2       See State v.

Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective assistance

of counsel claims are best resolved by postconviction proceedings to enable a


2
 In the plea bargain, the eluding charged was reduced from a “C” felony to a serious
misdemeanor.
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complete record to be developed and afford trial counsel an opportunity to

respond to the claim.”). Therefore, Bascom’s claim is preserved for possible

postconviction-relief proceedings, where a more complete record may be

established. See Straw, 709 N.W.2d at 133.

      AFFIRMED.
