                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0427
                               Filed June 19, 2019


JESSE NEITZEL,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee,

Judge.



      Jesse Neitzel appeals the summary disposition of his postconviction-relief

application. AFFIRMED.



      Edward Fishman of Hopkins & Huebner, P.C., Adel, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
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MAY, Judge.

      Jesse Neitzel appeals the dismissal of his postconviction-relief (PCR)

action. Neitzel does not claim error by the PCR court. Instead, Neitzel claims his

counsel was ineffective in allowing this action to be dismissed. We affirm but

preserve Neitzel’s ineffective-assistance claims.

      I.      Background.

      A jury found Neitzel guilty of sexual abuse in the second degree, a class “B”

forcible felony. Neitzel was sixteen years old when the alleged conduct occurred.

      In June 2010, the district court sentenced Neitzel to a term of incarceration

not to exceed twenty-five years with a mandatory minimum of 17.5 years. Neitzel

appealed, and this court affirmed. See State v. Neitzel, 801 N.W.2d 612, 626 (Iowa

Ct. App. 2011).

      In 2014, our supreme court decided State v. Lyle, 854 N.W.2d 378 (Iowa

2014). The Lyle court held mandatory minimums are unconstitutional “in cases

involving conduct committed by youthful offenders.” 854 N.W.2d at 402. Lyle also

prescribed several factors for sentencing courts to consider when deciding whether

to impose a minimum sentence. Id. at 404 n.10.

      Neitzel filed an application for resentencing.    Consistent with Lyle, the

district court held a resentencing hearing. Ultimately, though, the district court

again concluded “it is appropriate to require [Neitzel] to serve the minimum

sentence of 17.5 years before becoming eligible for parole.”

      In June 2017, our supreme court decided State v. Roby, 897 N.W.2d 127

(Iowa 2017). Roby “further developed” the sentencing factors announced in Lyle.

State v. Harrison, 914 N.W.2d 178, 190 (Iowa 2018).
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       In July 2017, Neitzel commenced this PCR action. Among other things,

Neitzel requests another resentencing hearing, this time based on Roby.

       The State moved for summary disposition based on Iowa Code section

822.3 (2017), the three-year statute of limitations for PCR actions. In a written

response, Neitzel’s PCR counsel admitted that Neitzel’s PCR claims “would now

be time-barred.” Counsel also pointed out, however, that “the correct vehicle” for

Neitzel to challenge his sentence is not a PCR action, but rather “a motion for

correction of illegal sentence, pursuant to Iowa R. Crim. P. 2.24(5)(a).” In a

reported hearing, Neitzel and his counsel seemed to agree that (1) they would not

resist the State’s motion for dismissal of this PCR action; but (2) separately, Neitzel

would pursue a motion for resentencing. The PCR court granted the State’s

motion and dismissed. This appeal followed.

       II.     Discussion.

       On appeal, Neitzel does not argue the PCR court erred in dismissing his

PCR action. Instead, Neitzel claims counsel was ineffective in failing to resist the

State’s motion for summary disposition.

       We can review Nietzel’s ineffective-assistance-of-counsel claims “if the

record is sufficient to reach” them. State v. Harris, 919 N.W.2d 753, 754 (Iowa

2018). “If the record is insufficient to allow” review at this stage, we will allow

Neitzel “to raise the claim in a separate postconviction-relief action.” Id. Likewise,

“[i]f the development of the ineffective-assistance claim in the appellate brief was

insufficient to allow its consideration, the court of appeals should not consider the

claim, but it should not outright reject it.” Id.
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       Applying these principles here, we find the record is not sufficiently

developed for our review of Neitzel’s ineffective-assistance claims. Therefore, we

do not consider those allegations now. See id.

       It is true, as the State concedes, that “[p]erhaps [PCR] counsel could have

requested the district court treat [Neitzel’s] application for postconviction relief as

a motion to correct an illegal sentence.” Cf. Veal v. State, 779 N.W.2d 63, 65 (Iowa

2010). On the present record, however, we cannot conclude that counsel’s failure

to make that request was “outside the range of normal competency” and, therefore,

constituted a “breach of an essential duty.” Morgan v. State, 469 N.W.2d 419, 426

(Iowa 1991); see State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Counsel may,

indeed, have had good reason for each step he [or she] took or failed to take.”).

Nor is the record adequate to determine whether Neitzel was prejudiced by

counsel’s strategy.    See Morgan, at 427–28.         Although his PCR case was

dismissed, Neitzel remains free to pursue resentencing “consistent with [Iowa’s]

current juvenile sentencing jurisprudence,” including Roby. State v. Zarate, 908

N.W.2d 831, 856 (Iowa 2018). Moreover, under Jefferson v. Iowa District Court,

Neitzel will have the right to request the appointment of counsel for his

resentencing. 926 N.W.2d 519, 524–25 (Iowa 2019).

       III.   Conclusion.

       For the reasons explained, we affirm but preserve Neitzel’s ineffective-

assistance claims for the possibility of “a separate postconviction-relief action” in

the future. See Harris, 919 N.W.2d at 754.

       AFFIRMED.
