                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0597
                             Filed January 13, 2016

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SPENCER RAY FITZPATRICK,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



       Defendant appeals his conviction and sentence for possession of a

controlled substance with intent to deliver as a habitual offender. AFFIRMED.



       Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Darrel Mullins,

Assistant Attorneys General, for appellee.



       Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       The defendant Spencer Fitzpatrick pleaded guilty to possession of a

controlled substance with intent to deliver, in violation of Iowa Code section

124.401(1)(c)(6) (2013), and was sentenced as a habitual offender for an

indeterminate term of incarceration not to exceed fifteen years pursuant to Iowa

Code section 902.8. Pursuant to Iowa Code section 124.413, the defendant was

required to serve one third of that sentence, or five years, prior to becoming

eligible for parole. Fitzpatrick timely filed this direct appeal.

       We first address Fitzpatrick’s challenge to his sentence.      In State v.

Draper, 457 N.W.2d 600 (Iowa 1990), the supreme court resolved the interplay

between the one-third mandatory-minimum sentencing provision set forth in the

Controlled Substances Act at section 124.413 and the three-year mandatory

minimum sentencing provision set forth in the habitual offender sentencing

enhancement at section 902.8 when both sections were implicated in imposing

sentence. The Draper court concluded the one-third mandatory minimum, rather

than the three-year mandatory minimum, applied to the fifteen-year sentence set

forth in section 902.8. See 457 N.W.2d at 605 (“Because section 902.9 and,

through it, section 902.8, defers to sentences prescribed by other statutes, the

court of appeals correctly applied the mandatory minimum sentence provision of

section 204.413 to the exclusion of the last sentence of section 902.8.”).

Fitzpatrick requests we overrule Draper and hold he is subject only to the three-

year mandatory minimum in section 902.8 and not the one-third mandatory

minimum in section 124.413.         “We are not at liberty to overrule controlling
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supreme court precedent.” State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App.

2014). Fitzpatrick’s argument thus fails.

       Fitzpatrick next contends his plea counsel was ineffective in failing to file a

motion in arrest of judgment to challenge Fitzpatrick’s guilty plea. Specifically,

Fitzpatrick contends his guilty plea was unknowing and involuntary because he

was not advised of the correct mandatory minimum sentence. To establish his

claim of ineffective assistance of counsel, the defendant must show that his trial

counsel failed to perform an essential duty and that this failure resulted in

prejudice.   See State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001).             Where a

defendant has pleaded guilty, the defendant must show that but for counsel’s

breach of duty he would have insisted on going to trial. See Hill v. Lockhart, 474

U.S. 52, 57-59 (1985).

       Iowa Rule of Criminal Procedure 2.8(2)(b) provides the district court “shall

not accept a plea of guilty without first determining that the plea is made

voluntarily and intelligently.” Rule 2.8(2)(b) sets forth certain advisories that must

be provided to a defendant to ensure any guilty plea is made voluntarily and

intelligently. Rule 2.8(2)(b)(2) provides the “court must address the defendant

personally in open court and inform the defendant of, and determine that the

defendant understands . . . [t]he mandatory minimum punishment, if any, and the

maximum possible punishment provided by the statute defining the offense to

which the plea is offered.” Substantial—not strict—compliance with the rule is

required. Kress, 636 N.W.2d at 21.
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        The parties disagree whether the defendant was advised in substantial

compliance with the rule. During the defendant’s plea colloquy, the prosecutor

identified the minimum sentence as follows:

        Mr. Fitzpatrick, the maximum sentence on a class C felony would
        be incarceration for a ten-year indeterminate term. There’s a
        mandatory one-third of that sentence that you’d have to serve if you
        were sent to prison.
               With the habitual offender enhancement, it increases that up
        to 15 years with a mandatory three years, so you’d have—if you
        were sent to prison—you’d have to do a three-year term.

The State contends it is ambiguous whether the prosecutor’s statement is a

correct statement of the applicable mandatory minimum. We disagree. The

finale of the Sopranos was ambiguous; the prosecutor’s statement here, not so

much.    The prosecutor’s statement of the applicable mandatory minimum is

simply incorrect. See Draper, 457 N.W.2d at 605. Neither the district court nor

the defendant’s counsel corrected the prosecutor’s statement.        Advising the

defendant of the incorrect mandatory minimum does not substantially comply

with the rule. See Kress, 636 N.W.2d at 21.

        Relying on Kress, the defendant contends the failure to advise him of the

correct mandatory minimum requires his conviction be reversed and he be

allowed to plead anew. In Kress, the court concluded plea counsel’s failure to

correct the incorrect advisory or file a motion in arrest of judgment was a breach

of an essential duty. See id. at 22. (“Such failure does not involve trial tactics,

strategies, or other judgment calls that we do not ordinarily second-guess.

Rather, it concerns counsel’s legal misadvice resulting from his unfamiliarity with

and failure to research applicable statutory provisions that would make clear the
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one-third mandatory minimum sentence applied.”). The Kress court summarily

concluded prejudice resulted and that the “[f]ailure to substantially comply with

rule 8(2)(b) renders the plea involuntary. In such circumstances, the remedy is to

set aside the conviction and sentence and allow the defendant to plead anew.”

Id. at 21 (citations omitted).

       The defendant’s reliance on Kress is misplaced. In State v. Straw, the

court criticized the Kress court’s apparent per se approach, calling it an

aberration:

               The brevity of our analysis of the prejudice element in Kress
       has led some to characterize our holding as a per se rule of
       prejudice when the district court fails to tell the defendant the
       maximum sentence on an ineffective-assistance-of-counsel claim.
       We reject this characterization because Kress was an aberration
       which failed to consider the analysis set forth in Hill. We also
       refuse to adopt a per se rule of prejudice because such a rule
       would force us to accept conclusory claims of prejudice without the
       benefit of a true review of the circumstances surrounding the plea.
       Under the “reasonable probability” test, the defendant, who has
       already admitted to committing the crime, has the burden to prove
       he or she would not have pled guilty if the judge had personally
       addressed the maximum punishment for his or her crimes. On the
       other hand, if we adopted a per se rule, some defendants would
       grin like a Cheshire cat as we gave them a second bite at the
       apple—even though they committed the crime and actually knew
       the maximum length of punishment for the crime. Such a rule
       would undermine the court’s integrity and erode the public’s
       confidence in its criminal justice system. Though, on its face, it
       may appear easier to reverse the conviction and let Straw plead
       anew, the driving force behind our decision is the common-sense
       notion that a conviction will not be reversed unless the judicial
       misstep complained of prejudiced the defendant.
               Our standard for the prejudice element in ineffective-
       assistance-of-counsel claims remains consistent—in order to
       satisfy the prejudice requirement, the defendant must show that
       there is a reasonable probability that, but for counsel’s errors, he or
       she would not have pleaded guilty and would have insisted on
       going to trial.
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              Under the “reasonable probability” standard, it is abundantly
      clear that most claims of ineffective assistance of counsel in the
      context of a guilty plea will require a record more substantial than
      the one now before us. Unlike our decision in Meier, there is
      nothing in this record to indicate whether or not Straw’s trial counsel
      told him about the possibility of consecutive sentences. Such
      evidence could be a significant part of our prejudice analysis. This
      case exemplifies why claims of ineffective assistance of counsel
      should normally be raised through an application for postconviction
      relief. In only rare cases will the defendant be able to muster
      enough evidence to prove prejudice without a postconviction relief
      hearing.

709 N.W.2d 128, 137-38 (Iowa 2006).

      We conclude Straw is the controlling authority. As in Straw, we conclude

the record here is inadequate to resolve the prejudice component of the

defendant’s claim. Accordingly, we preserve Fitzpatrick’s ineffective-assistance-

of-counsel claim for postconviction-relief proceedings.

      AFFIRMED.
