                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0756
                              Filed January 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONAH CRAIG CHINN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Guthrie County, Thomas P. Murphy,

Judge.



      Jonah Chinn appeals his conviction, following a guilty plea, of operating

while intoxicated, third offense. AFFIRMED.




      John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.




      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge

       Jonah Chinn was charged by trial information with the following crimes: (1)

driving while barred as a habitual offender; (2) operating while intoxicated (OWI),

third or subsequent offense; and (3) possession of cocaine. The parties ultimately

reached a plea agreement. At the plea hearing, the State advised the court as

follows:

       A plea agreement has been reached in this case, wherein Mr.
       Chinn’s plea of guilty to Count II of the trial information, OWI, third
       offense, Class D Felony, the State will move to dismiss the remaining
       counts in the trial information following sentencing. And, additionally,
       not pursue the habitual felon enhancement which was filed in this
       case.

(Emphasis added.) Upon questioning by the court, defense counsel agreed the

State “accurately summarized the terms of the agreement.” The court went on to

advise Chinn of the rights he was giving up by pleading guilty, the State’s

evidentiary burden for the charge he was pleading guilty to, the minimum and

maximum penalties for the same, and the court’s ability to sentence him contrary

to the terms of the plea agreement or the parties’ recommendations.               Chinn

admitted to facts sufficient to establish a factual basis for his plea to operating while

intoxicated, third offense, and the court accepted the plea. The court then notified

Chinn of his obligation to file a motion in arrest of judgment if he wished to

challenge the adequacy of his plea for any reason. No motion in arrest of judgment

was ever filed, and the court imposed sentence at a subsequent hearing.

       Chinn appeals, contending his counsel was ineffective in failing to ensure

he understood the charges he was facing and the terms of the plea agreement in

conjunction with entering his guilty plea and in failing to file a motion in arrest of
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judgment on those grounds. Although Chinn failed to file a motion in arrest of

judgment, he may challenge his plea through a claim of ineffective assistance of

counsel. See State v. Weitzel, 905 N.W.2d 397, 401 (Iowa 2017). Our review of

such claims is de novo. See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018).

Chinn must show by a preponderance of the evidence that (1) counsel failed to

perform an essential duty and (2) prejudice resulted. Strickland v. Washington,

466 U.S. 668, 687 (1984); State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).

Failure to prove either is fatal to the claim. See State v. McNeal, 897 N.W.2d 697,

703 (Iowa 2017).

       Chinn clings to the following language in the State’s recitation of the plea

agreement to support his argument his counsel was ineffective in failing to ensure

he understood the charges and plea agreement: “And, additionally, not pursue the

habitual felon enhancement which was filed in this case.” The parties appear to

agree that the State was referring to not pursuing application of the sentencing

provisions contained in Iowa Code sections 902.8 and 902.9(1)(c) (2017).1 The

parties also agree that the habitual-offender sentencing enhancement was not

alleged in the trial information. Chinn argues:

       Counsel for the State advised the court that a notice of habitual
       offender enhancement had been filed and this is simply not accurate.
       Counsel for Chinn should have corrected this error or filed a motion
       in arrest of judgment before the sentencing, and was ineffective for
       failing to do so.




1
  We note that, following Chinn’s plea and sentence, the supreme court ruled third or
subsequent OWI offenders are not subject to the habitual-offender provisions contained
in Iowa Code section 902.8 and 902.9. See Noll v. Iowa Dist. Ct., 919 N.W.2d 232, 236
(Iowa 2018).
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       We agree the prosecutor misspoke as to whether the habitual-offender

enhancement was filed. However, a de novo review of the record shows Chinn

could have potentially been charged as a habitual offender.2 It is possible that

defense counsel mistakenly believed that a habitual-offender enhancement had

been filed by the State and was in play and counsel’s advice to Chinn on whether

to plead guilty was affected by that mistaken belief. It is also possible that the

State’s agreement to not amend the trial information and pursue the enhancement

was discussed during plea negotiations, counsel’s advice on whether to plead

guilty was tailored to include such information, and counsel simply neglected to

challenge the variation of how the State indicated at the plea hearing that it would

not pursue it. Absent a record concerning the substance of the plea negotiations,

we find the record inadequate to decide whether counsel failed to perform an

essential duty or whether Chinn was prejudiced. Consequently, we affirm Chinn’s

conviction, but preserve his claim of ineffective assistance of counsel for possible

postconviction-relief proceedings. See Harris, 919 N.W.2d at 754.

       AFFIRMED.




2
  A presentence-investigation report (PSI) was prepared following Chinn’s guilty plea. The
PSI shows Chinn was convicted of two counts of second-degree theft and one count of
first-degree theft in 2005 and another count of second-degree theft in 2014, all of which
amount to either class “C” or “D” felonies. See Iowa Code § 714.2(1)–(2). When asked
at sentencing whether he had any corrections, deletions, or additions to the PSI, Chinn
only noted his address was incorrect. Having twice before been convicted of a felony in
this State, and facing a charge of operating while intoxicated, third or subsequent offense,
a class “D” felony, id. § 321J.2(2)(c), if he was represented by counsel in those prior
convictions, Chinn qualified as a habitual offender. See id. § 902.8.
