
                        IN THE SUPREME COURT OF IOWA

                              No. 111 / 04-0952

                           Filed February 3, 2006

STATE OF IOWA,

      Appellee,

vs.

CARY LEE STRAW,

      Appellant.
________________________________________________________________________
      On review from the Iowa Court of Appeals.

      Appeal from the Iowa District Court for Fayette County, J.G.  Johnson,
District Associate Judge.

      Defendant appeals from his conviction and sentence upon  his  plea  of
guilty to possession of a controlled substance, third offense,  and  driving
while barred.  Affirmed.

      Linda Del Gallo,  State  Appellate  Defender,  and  Greta  A.  Truman,
Assistant State Appellate Defender, for appellant.

       Thomas  J.  Miller,  Attorney  General,  Kristin  Guddall,  Assistant
Attorney General, and W. Wayne Saur, County Attorney, for appellee.

STREIT, Justice.
      Cary Lee Straw appeals from the judgments and sentences entered by the
district court following his guilty pleas  to  possession  of  a  controlled
substance, third offense,  and  driving  while  barred.   Straw  claims  the
district court erred by not substantially complying  with  the  requirements
of Iowa Rule of Criminal Procedure 2.8(2)(b).  He also  claims  his  counsel
rendered ineffective assistance by failing to file a  motion  in  arrest  of
judgment after the  district  court  did  not  inform  him  of  the  maximum
punishment he could face by pleading guilty.  The court of appeals  affirmed
the decision of  the  district  court.   Upon  our  review,  we  affirm  the
decision on different grounds and  preserve  the  issue  for  postconviction
relief proceedings.
      I.    Facts and Prior Proceedings
      On a Tuesday afternoon in the fall of November 2003,  Cary  Lee  Straw
rolled through the town of Oelwein with a license plate that did  not  match
his vehicle.  A police officer stopped  Straw  to  investigate  the  license
plate and discovered Straw was driving while barred.  The  officer  arrested
him, searched him, and found a plastic bag containing marijuana and  rolling
papers in his pocket.  The officer also noticed an open bottle of  Jim  Beam
bourbon whiskey and an open bottle of vodka in the  back  seat.   Straw  was
charged with possession of a controlled substance (third  offense),  driving
while barred, and possession of drug paraphernalia.  He was also  cited  for
an open container violation and improper use of a vehicle registration.
      Pursuant to a plea agreement, Straw pled guilty  to  possession  of  a
controlled substance, third offense, and driving  while  barred.   See  Iowa
Code §§ 124.401(5) (2003)  (possession  of  a  controlled  substance,  third
offense, class  “D”  felony),  321.561  (driving  while  barred,  aggravated
misdemeanor).   In  exchange  for  his  plea,  the   State   dismissed   the
paraphernalia charge, as well as the improper use of registration  and  open
container citations.  The agreement also specified Straw would make his  own
recommendation for sentencing while the  State  would  recommend  concurrent
sentences for both charges.[1]
      Before accepting the plea, the court spoke with  Straw  and  discussed
the elements of the charged offenses, the factual basis for  those  charges,
the right to go to trial, rights pursuant to trial, and the fact that if  he
pled guilty he would be forfeiting those rights.  The court did not  discuss
the maximum  punishment  he  would  face  by  pleading  guilty.   The  court
accepted Straw’s plea and found it “knowingly and voluntarily made”  with  a
basis in fact.  Straw  never  filed  a  motion  in  arrest  of  judgment  to
challenge the validity of his plea.
      Weeks later, the sentencing court imposed  sentences  of  up  to  five
years for the possession of marijuana charge and up to  two  years  for  the
driving-while-barred charge.  The court ordered  the  sentences  consecutive
to each other and consecutive to a separate, unrelated conviction.
      Straw appealed, contending the district court erred  by  not  properly
informing him of the potential punishments he faced for pleading  guilty  to
these charges, and erred by not explaining these sentences could be  ordered
to run consecutively.  Straw claimed this rendered his  plea  unknowing  and
involuntary.  Straw asserted his claim  should  be  considered  directly  on
appeal because the district court did  not  adequately  advise  him  of  his
right to file a motion in arrest of judgment.   In  the  alternative,  Straw
claimed his counsel was ineffective for  failing  to  ensure  he  was  fully
informed at the plea proceeding and for failing to file a motion  in  arrest
of judgment.
      We transferred the case to the court of appeals.  The court of appeals
found the district court substantially complied  with  its  duty  to  inform
Straw of his right to file a motion in arrest  of  judgment  and  determined
Straw did not preserve the error for direct appeal because he did  not  file
such a motion.  It then analyzed whether Straw’s  counsel  was  ineffective.
It determined Straw’s counsel violated an essential duty  by  not  filing  a
motion in arrest of judgment, but ultimately  affirmed  the  district  court
because it found Straw was not  prejudiced  by  the  error  because  he  had
received a favorable plea and the evidence  against  him  was  overwhelming.
We granted further review.
      II.   Error Preservation
      The State contends Straw may not directly challenge his guilty plea on
appeal because he did not file a motion in  arrest  of  judgment  contesting
the legality of his plea.  See Iowa R.  Crim.  P.  2.24(3)  (“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.”); see  State  v.  Loye,  670  N.W.2d  141,  149  (Iowa
2003).[2]  Straw contends this requirement does not apply because the  trial
court did not adequately advise him that failure to file a motion in  arrest
of judgment would preclude him  from  later  raising  issues  regarding  his
guilty plea on appeal.  See Iowa R. Crim. P.  2.8(2)(d)  (“The  court  shall
inform the defendant that any challenges  to  a  plea  of  guilty  based  on
alleged defects in the plea proceedings  must  be  raised  in  a  motion  in
arrest of judgment and that  failure  to  so  raise  such  challenges  shall
preclude the right to assert them on appeal.”);  Loye,  670  N.W.2d  at  149
(stating  court’s  failure  to  comply  with  rule  2.8(2)(d)  operates   to
reinstate the defendant’s right to appeal the legality of his plea).
      Following Straw’s guilty plea, the district court told Straw:

           Now, if  you  have—wish  to  appeal  or  challenge  any  of  the
      proceedings that have taken place in the courtroom today, you have  to
      file a paper that we call a Motion in Arrest  of  Judgment.   That  is
      simply a paper that basically says I didn’t follow all of the  correct
      procedures in taking your guilty plea and it gives me a chance  to  go
      back and correct that.  Mr. Harden can explain that to you.   But  the
      important thing is that that paper must be filed not  less  than  five
      days before sentencing.  So, when we come back for sentencing,  if  no
      such motion has been filed, then we will proceed to sentencing, and we
      will assume that all the procedures we followed up to this  point  are
      correct.  Do you understand that, sir?

Straw responded, “Yes, Your Honor.”
      We employ a substantial compliance standard in determining  whether  a
trial court has discharged its duty under rule 2.8(2)(d).  Id. at 150.   The
court must ensure the  defendant  understands  the  necessity  of  filing  a
motion to challenge a guilty plea and the consequences of failing to do  so.
 Id.
      The court’s comments were sufficient to discharge its duty under  rule
2.8(2)(d).  Instead of quoting rule 2.8(2)(d) verbatim, the court  performed
its duty commendably by using plain English to explain the motion in  arrest
of judgment.  The court’s statement plainly indicated that if  Straw  wanted
to appeal or challenge the guilty plea, he had to file a  motion  in  arrest
of judgment.  It also indicated this motion had to be filed  not  less  than
five  days  before  sentencing.   In  whole,  it  conveyed   the   pertinent
information  and  substantially  complied  with  the  requirements  of  rule
2.8(2)(d).  Therefore, Straw’s failure to move in arrest of judgment bars  a
direct appeal of his conviction.  Iowa R.  Crim.  P.  2.24(3)(a);  State  v.
Brooks, 555 N.W.2d 446, 448 (Iowa 1996).  However,  this  failure  does  not
bar a challenge to a guilty plea if the failure to file a motion  in  arrest
of judgment resulted from ineffective assistance of  counsel.   Brooks,  555
N.W.2d at 448.
      III.  Merits and Scope of Review
      An ineffective-assistance-of-counsel claim in a  criminal  case  “need
not be raised on direct appeal from the criminal  proceedings  in  order  to
preserve  the  claim  for  postconviction  relief  purposes.”    Iowa   Code
§ 814.7(1) (2005).  The  defendant  may  raise  the  ineffective  assistance
claim on direct appeal if he or she has reasonable grounds  to  believe  the
record is adequate to address the claim on direct appeal.  Id.  §  814.7(2).
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.  Id.  § 814.7(3).  Only in rare cases  will  the  trial  record
alone be sufficient to resolve the claim on direct appeal.  State v.  Atley,
564 N.W.2d 817, 833 (Iowa 1997) (stating claims  of  ineffective  assistance
of  counsel  raised  on  direct   appeal   are   ordinarily   reserved   for
postconviction  proceedings  to  allow  full  development   of   the   facts
surrounding counsel’s conduct); State v. Coil, 264  N.W.2d  293,  296  (Iowa
1978).  We review ineffective-assistance-of-counsel claims de  novo.   State
v. Button, 622 N.W.2d 480, 483 (Iowa 2001).
      A.    Ineffective Assistance
      To establish his claim of ineffective  assistance  of  counsel,  Straw
must demonstrate (1) his trial counsel failed to perform an essential  duty,
and (2) this failure resulted in prejudice.  Strickland v.  Washington,  466
U.S. 668, 687-88, 104 S. Ct. 2052, 2065, 80  L.  Ed.  2d  674,  693  (1984);
State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004).   Straw  must  prove  both
elements by a preponderance of the evidence.   State  v.  Gant,  597  N.W.2d
501, 504 (Iowa 1999).  As discussed in the following  analysis,  the  record
does not adequately present the issues in this case and  the  case  is  more
properly addressed  in  a  postconviction  relief  hearing.   See  State  v.
Ueding, 400 N.W.2d 550, 553 (Iowa 1987).
      1.    Failure to Perform an Essential Duty
      Under the first prong of this test, counsel’s performance is  measured
“against the standard  of  a  reasonably  competent  practitioner  with  the
presumption that the attorney performed his duties in a  competent  manner.”
Dalton, 674 N.W.2d at 119. Straw claims his counsel  violated  an  essential
duty by failing to file a motion in arrest of judgment prior to  sentencing.
 There is adequate evidence in the record to decide  this  issue  on  direct
appeal.
      Due process requires the defendant enter his guilty  plea  voluntarily
and intelligently.  State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005).  “If  a
plea is not intelligently and voluntarily made, the failure  by  counsel  to
file a motion in arrest of judgment to  challenge  the  plea  constitutes  a
breach of an essential duty.”  Id.  In order to  ensure  a  guilty  plea  is
voluntarily  and  intelligently  made,  the  court   must   articulate   the
consequences of the plea to the defendant.  State v. Boone, 298 N.W.2d  335,
337 (Iowa 1980).  Iowa Rule of Criminal  Procedure  2.8(2)(b)  provides  the
court with a blueprint for the guilty plea proceeding:

      Before accepting  a  plea  of  guilty,  the  court  must  address  the
      defendant personally in open court and inform the  defendant  of,  and
      determine that the defendant understands, the following:
      (1) The nature of the charge to which the plea is offered.

      (2) The mandatory minimum punishment, if any, and the maximum possible
      punishment provided by the statute defining the offense to  which  the
      plea is offered.

      (3)  That  a  criminal  conviction,  deferred  judgment,  or  deferred
      sentence may affect a defendant’s  status  under  federal  immigration
      laws.

      (4) That the defendant has the right to be tried by  a  jury,  and  at
      trial has the right to assistance of counsel, the  right  to  confront
      and cross-examine witnesses against the defendant, the right not to be
      compelled to incriminate oneself, and the right to  present  witnesses
      in the defendant’s own  behalf  and  to  have  compulsory  process  in
      securing their attendance.

      (5) That if the defendant pleads guilty there will not  be  a  further
      trial of any kind, so that by pleading guilty the defendant waives the
      right to a trial.

Iowa R. Crim. P. 2.8(2)(b) (emphasis added).   Substantial  compliance  with
this rule is required.  State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990).
      The State concedes the district court  did  not  substantially  comply
with rule 2.8(2)(b)(2) when it omitted any mention of the  punishment  Straw
could face by pleading guilty to the charges in this case.  See,  e.g.,  id.
(holding substantial compliance is  the  measure  for  judging  whether  the
requirements of rule 2.8(2)(b) have been met).   When  Straw’s  counsel  did
not bring this matter to the court’s attention or file a  motion  in  arrest
of judgment, his counsel failed to perform an essential duty.  See State  v.
Myers, 653 N.W.2d 574 (Iowa 2002) (finding  counsel  breached  an  essential
duty by failing to raise court’s failure to  inform  the  defendant  of  the
right to compulsory process); State v. Kress,  636  N.W.2d  12  (Iowa  2001)
(holding  defense  counsel’s  failure  to  correct  court’s   misinformation
concerning defendant’s potential sentence exposure, or  to  file  motion  in
arrest of judgment raising the issue, placed counsel below range  of  normal
competency).
2.    Resulting Prejudice
      Straw claims he suffered prejudice  because,  had  he  understood  the
sentences could be made consecutive,[3] he would not have pled  guilty.  The
fighting issue in this case is what standard should be applied  to  evaluate
Straw’s claim under this prejudice element.  Four cases guide our  analysis.

      In 1983, we reviewed Joseph Ross Meier’s appeal from the denial of his
application seeking postconviction relief from his conviction pursuant to  a
guilty plea.  Meier v. State, 337 N.W.2d  204,  205  (Iowa  1983).   In  the
postconviction relief (PCR) hearing  Meier  established  a  record  for  our
review.  Id.  At the PCR hearing, Meier described how his  original  counsel
had told him that if he stood trial and was convicted, he would be  given  a
twenty-five year sentence with a mandatory five-year sentence;  however,  if
he pled guilty, he would get the twenty-five  years  without  the  mandatory
term.  Id.  He thought his counsel meant that if he  accepted  the  bargain,
he could be released in less than five years; however, if he did not  accept
the bargain and was eventually convicted, then he  would  be  in  prison  at
least five years before he would be eligible for any kind of  release.   Id.
 His original counsel substantiated his claim—“I am sure  that  I  told  Mr.
Meier that if we stood trial and  .  .  .  that  sentencing  provision  were
invoked, that he would serve five years and be eligible for  parole  at  the
expiration of five years.”  Id.  Based on his counsel’s advice,  Meier  pled
guilty and waived his right to trial.  Id.
      The PCR trial court found Meier’s original counsel misadvised  him  of
the law.  Id.  However, because Meier “got what he bargained for;  that  is,
a  25-year  sentence  without  a  mandatory  minimum  sentence,”  the  court
concluded the record did not demonstrate his counsel  was  so  “mistaken  or
careless in his advice to [Meier] to amount  to  ineffective  assistance  of
counsel.”  Id. at 205-06.  Our court disagreed and reversed.   Id.  at  208.
Noting the test in this context was for ineffective assistance  of  counsel,
we determined Meier’s trial counsel gave erroneous advice regarding the  law
and Meier relied on this advice in waiving trial and pleading  guilty.   Id.
at 206-08.  When it came to the prejudice element, we did not focus on  what
sentence Meier received, but instead focused on what he  relinquished.   Id.
at 208.  We found a due process deprivation occurred when Meier  was  unable
to make an intelligent and informed choice from among his alternate  courses
of action at the plea hearing and we would not speculate as to  the  outcome
of the trial waived by the guilty plea.  Id.  We reversed  and  remanded  so
Meier could plead anew.  Id.
      In  Meier,  the  dissent  focused  on  whether  Meier  proved  he  was
substantially prejudiced by his  attorney’s  misadvice.   Id.   The  dissent
noted the  following  evidence  indicated  there  was  no  actual  prejudice
suffered by Meier:  (1)  there  was  “not  even  a  hint  of  evidence  that
petitioner could have obtained a better result,” (2) his  original  attorney
testified Meier had no chance to prevail in a jury trial  on  the  issue  of
culpability, and (3) his original attorney thought  the  best  deal  was  to
take the plea bargain.  Id.  In  the  face  of  these  three  findings,  the
dissent  found  Meier  failed  to  prove  he  suffered  prejudice  from  his
counsel’s misadvice.  Id.
      Two years after Meier, the United States Supreme Court  discussed  the
prejudice element  of  an  ineffective-assistance-of-counsel  claim  in  the
context of a guilty plea.  Hill v. Lockhart, 474 U.S.  52,  59,  106  S. Ct.
366, 370, 88 L. Ed. 2d 203, 210 (1985).  In  Hill  v.  Lockhart,  the  Court
considered a prisoner’s  petition  for  habeas  corpus  alleging  his  trial
counsel was ineffective in failing  to  accurately  inform  him  as  to  his
eligibility for parole.   Id.   The  district  court  denied  habeas  relief
because neither state law nor federal law required that Hill be informed  of
his parole eligibility date prior to pleading guilty.  Id.  at  55,  106  S.
Ct. at 368, 88 L. Ed. 2d at 207-08.  A divided  Court  of  Appeals  for  the
Eighth Circuit affirmed the district  court,  with  the  dissent  arguing  a
hearing should have been held to determine whether  Hill’s  counsel  wrongly
advised him on his parole eligibility prior to the plea.  Hill v.  Lockhart,
731 F.2d 568, 573 (8th Cir. 1984).
      The Supreme Court affirmed the  decision  of  the  court  of  appeals,
stating the prejudice element in a guilty  plea  case  “focuses  on  whether
counsel’s constitutionally ineffective performance affected the  outcome  of
the plea process.”  Hill, 474 U.S. at 59, 106 S. Ct. at 370, 88 L.  Ed.  2d.
at  210.   The  Court  stated:  “in  order  to   satisfy   the   ‘prejudice’
requirement, the defendant must show that there is a reasonable  probability
that, but for counsel’s errors, he would not have pleaded guilty  and  would
have insisted on going to trial.”  Id.
      The Court described this test by explaining how, in many  guilty  plea
cases, the prejudice inquiry would resemble the same  inquiry  as  when  the
conviction was obtained through trial.  Id.  For example, when  the  alleged
error of  counsel  is  a  failure  to  investigate  potentially  exculpatory
evidence, the determination whether this failure  prejudiced  the  defendant
by causing him to enter into a plea agreement rather than go to  trial  will
depend on whether it was likely the discovered evidence would  have  changed
his counsel’s recommendation as to the plea.  Id.  “This assessment  .  .  .
will depend in large part on a prediction whether the evidence likely  would
have changed the outcome of [the] trial.”  Id. However, the  Court  did  not
reach the  question  whether  erroneous  advice  by  counsel  as  to  parole
eligibility would be  constitutionally  ineffective  assistance  of  counsel
because Hill “did not  allege  in  his  habeas  petition  that  had  counsel
correctly informed him about his parole eligibility  date  . .  .  he  would
have pleaded not guilty and insisted on going to trial.”  Id. at 60, 106  S.
Ct. at 371, 88 L. Ed. 2d at 211.  The Court noted  he  “alleged  no  special
circumstances that might support the conclusion that  he  placed  particular
emphasis on his parole eligibility in  deciding  whether  or  not  to  plead
guilty” and it therefore found Hill did not satisfy the second prong of  the
ineffective assistance test.  Id.
      After the Hill  decision,  we  applied  the  “reasonable  probability”
standard to ineffective-assistance-of-counsel claims.  See, e.g.,  State  v.
Hopkins, 576 N.W.2d 374,  378  (Iowa  1998)  (evaluating  prejudice  in  the
context of a conviction by jury trial); Irving v.  State,  533  N.W.2d  538,
541 (Iowa 1995) (evaluating prejudice in the  context  of  a  conviction  by
guilty plea).
      In State v. Kress, we again discussed  the  prejudice  element  of  an
ineffective-assistance-of-counsel claim in the context of a guilty plea.  In
Kress, the trial court accepting the guilty plea misinformed  the  defendant
that the  sentencing  court  could  waive  a  mandatory  minimum  sentencing
requirement.  636 N.W.2d at 21-22.  We began our  ineffective-assistance-of-
counsel analysis by applying the familiar two-step test.   Id.  at  20.   We
first  determined  the  defendant’s  trial  counsel  failed  to  perform  an
essential duty by not correcting the  court’s  misinformation  or  filing  a
motion in arrest of judgment.  Id. at 22.  We  then  turned  to  the  second
element, resulting prejudice.  The following is our entire analysis of  this
element:

           Turning to the prejudice element, we think the prejudice results
      from what Kress relinquished.  [Meier, 337 N.W.2d at 208].  Kress ‘had
      an unqualified constitutional right to a trial on the issue  of  [her]
      guilt, which she [may have] abandoned on the strength of [the  court’s
      misinformation].’  Id.  We do not speculate  on  the  outcome  of  the
      trial waived by her guilty plea.  Id.  As mentioned, the remedy called
      for in these circumstances is to set aside the conviction and sentence
      and allow the defendant to plead anew.

Id.  Rather than  explicitly  discussing  the  Hill  reasonable  probability
analysis, we cited Meier and concluded there was resulting prejudice.
      In State  v.  Myers,  we  again  considered  a  direct  appeal  of  an
ineffective-assistance-of-counsel claim in the context  of  a  guilty  plea.
653 N.W.2d at 577.  In this case, the defendant  was  not  informed  of  the
right to compulsory process during the plea colloquy.   Id.   The  defendant
claimed she received ineffective assistance  of  counsel  when  her  counsel
failed to file a motion in arrest of judgment after the court told her  “you
. . . have the right to present any witnesses in your  own  defense”  rather
than explaining she  could  force  the  attendance  of  such  witnesses,  as
required by rule 2.8(2)(b)(4) (compulsory process).  Id.  We determined  the
trial counsel’s failure to correct the judge or file a motion in  arrest  of
judgment established the first prong of the test for ineffective  assistance
of counsel, but we found the second prong of the  ineffective-assistance-of-
counsel test to be “more problematic.”  Id. at 578.  We did not cite  either
Meier or  Kress  as  authority  for  the  prejudice  element.   Instead,  we
analyzed the prejudice element under the “reasonable probability”  framework
set forth in Hill.  Id.  After a thorough analysis under this  standard,  we
concluded the defendant failed to  prove,  or  even  assert,  there  was  “a
reasonable probability that, ‘but for counsel’s error[ ],  [s]he  would  not
have pleaded guilty and  would  have  insisted  on  going  to  trial.’”  Id.
(quoting Hill, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210).   We
stated the defendant’s right of compulsory process could not be claimed  “in
a vacuum,” and a conclusory claim that she was ready to insist on  going  to
trial was not a sufficient assertion  of  prejudice.   Id.  at  578-79.   We
noted  the  defendant  had  not  claimed  there  were  any  witnesses  whose
testimony was denied her because she could not force them to  testify.   Id.
at 579.
      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.[4]  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.  Id. (quoting Hill, 474 U.S.  at  59,
106 S. Ct. at 370, 88 L. Ed. 2d at 210).
      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.[5]  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.  Atley, 564 N.W.2d at 833; Coil,  264  N.W.2d
at 296.
      IV.   Conclusion
      Once a defendant waives his or her right to a trial by pleading guilty
and then does not file a motion in arrest of judgment prior  to  sentencing,
“the State is entitled to expect finality  in  the  conviction.”   State  v.
Mann, 602 N.W.2d 785, 789 (Iowa 1999).  “This is true because ‘[a]  plea  of
guilty is more than a confession which admits that the accused  did  various
acts; it is itself a conviction.’ ”  State v. LaRue,  619  N.W.2d  395,  397
(Iowa 2000) (quoting Boykin v. Alabama, 395 U.S. 238, 242, 89 S.  Ct.  1709,
1711, 23 L. Ed. 2d 274, 279  (1969)).   Nothing  in  the  record  before  us
indicates we should overturn Straw’s conviction.  We affirm the decision  of
the court of appeals  and  uphold  the  conviction  and  sentence.   Straw’s
ineffective-assistance-of-counsel  claim  is  preserved  for  postconviction
relief proceedings.
Affirmed.
      All justices  concur  except  Lavorato,  C.J.  and  Wiggins,  J.,  who
dissent.
      #111/04-0952, State v. Cary Lee Straw

LAVORATO, Chief Justice (dissenting).
      This case involves  a  claim  of  ineffective  assistance  of  counsel
arising out of a guilty plea.  Pursuant to a plea agreement,  the  defendant
pleaded guilty to two offenses:  possession of a  controlled  substance  and
driving while barred.  In return for the plea,  the  State  agreed  to  drop
several other charges.  The record is clear that before the  district  court
accepted the plea, it failed to advise the defendant that  it  could  impose
consecutive sentences.
      On appeal, the defendant contended that the district court erred  when
it did not inform him that it could impose  consecutive  sentences  and  for
that reason the  plea  was  not  knowingly  and  voluntarily  entered.   The
defendant also contended that his counsel was  ineffective  for  failing  to
ensure that  the  defendant  was  fully  informed  at  the  plea  proceeding
regarding the potential for consecutive sentences and for failing to file  a
motion in arrest of judgment challenging the plea on this basis.
      I agree with the majority that when the defendant’s  counsel  did  not
bring this matter to the district court’s attention  or  failed  to  file  a
motion in arrest of judgment, counsel failed to perform an  essential  duty.
I disagree with the majority’s holding on the prejudice prong of  the  claim
for ineffective assistance of counsel.  My reasons for disagreeing follow.
      As we noted in State v. Loye,

           The Due Process Clause  [of  the  Fourteenth  Amendment  to  the
      Federal Constitution] requires that a guilty plea be  voluntary.   “To
      be truly voluntary, the plea must not only be  free  from  compulsion,
      but must also be knowing and intelligent.”  Consequently, a  defendant
      must be aware not only of the constitutional protections that he gives
      up by pleading guilty, but he must also be conscious of “the nature of
      the crime with which he is charged” and the potential penalties.

670 N.W.2d 141, 150-51 (Iowa 2003)  (emphasis  added)  (citations  omitted);
see also State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005) (“ ‘A  guilty  plea
results in a waiver of several constitutional rights.  For the waiver to  be
valid, there must be an intentional relinquishment  of  known  rights.   Due
process therefore requires that a defendant enter a guilty plea  voluntarily
and intelligently.’ ” (Citation omitted.)).
      Iowa Rule of Criminal Procedure 2.8(2)(b) was passed  to  ensure  that
pleas are voluntary, State v.  Fluhr,  287  N.W.2d  857,  863  (Iowa  1980),
overruled on other grounds by State v.  Kirchoff,  452  N.W.2d  801,  804-05
(Iowa 1990), and “codifies this due process mandate,” Loye,  670  N.W.2d  at
151.  Rule 2.8(2)(b) provides in part:

      The court may refuse to accept a plea of guilty, and shall not  accept
      a plea of guilty without first  determining  that  the  plea  is  made
      voluntarily  and  intelligently  and  has  a  factual  basis.   Before
      accepting a plea of guilty,  the  court  must  address  the  defendant
      personally in open court and inform the defendant  of,  and  determine
      that the defendant understands, the following:
           (1) The nature of the charge to which the plea is offered.
           (2) The mandatory minimum punishment, if any,  and  the  maximum
      possible punishment provided by the statute defining  the  offense  to
      which the plea is offered.
           (3) That a criminal conviction, deferred judgment,  or  deferred
      sentence may affect a defendant’s  status  under  federal  immigration
      laws.
           (4) That the defendant has the right to be tried by a jury,  and
      at trial has the right to assistance of counsel, the right to confront
      and cross-examine witnesses against the defendant, the right not to be
      compelled to incriminate oneself, and the right to  present  witnesses
      in the defendant’s own  behalf  and  to  have  compulsory  process  in
      securing their attendance.
           (5) That if the defendant pleads guilty  there  will  not  be  a
      further trial of any kind, so that by pleading  guilty  the  defendant
      waives the right to a trial.

Iowa R. Crim. P. 2.8(2)(b)(1)-(5) (emphasis added).
      As the majority notes, we apply a substantial compliance  standard  in
assessing whether the trial court has adequately informed the  defendant  of
the  matters  listed  in  the  rule.   Loye,  670  N.W.2d  at  151.        “
‘Substantial compliance’  requires  at  a  minimum  that  the  defendant  be
informed of these matters and understand them.”  Id.
      A failure to challenge the plea in a  motion  in  arrest  of  judgment
precludes a defendant from asserting such a challenge on  appeal.   Iowa  R.
Crim. P. 2.24(3)(a).  One exception occurs when during the  plea  the  court
fails to advise the  defendant,  as  required  by  rule  2.8(2)(d),  of  the
necessity to file the motion within the time set  out  in  rule  2.24(3)(b).
Loye, 670 N.W.2d at 149-50.  Another exception occurs when  the  failure  to
file the motion results from ineffective assistance  of  counsel,  State  v.
Brooks, 555 N.W.2d 446, 448 (Iowa 1996), which is the case here.
      On direct appeal, the remedy for a successful challenge  to  a  guilty
plea is to vacate the plea, reverse the judgment of conviction,  and  remand
the case to allow the defendant to plead anew.  Loye, 670 N.W.2d  at  153-54
(because  the  district  court  did  not  substantially  comply  with   rule
2.8(2)(b)(1)-(2) when it did not confirm that the defendant  understood  the
nature of the charges to which she intended to plead guilty or  the  maximum
possible punishments that might result from the plea, the plea violated  the
Due Process Clause and for that reason  had  to  be  set  aside);  State  v.
White, 587 N.W.2d 240, 246-47 (Iowa 1998) (plea was successfully  challenged
on appeal based on ground that defendant was not informed that  the  maximum
punishment that could  be  imposed  included  consecutive  sentences).   The
remedy is applied even if counsel has discussed the same  matters  with  the
defendant in preparation for the plea hearing.  Loye,  670  N.W.2d  at  153.
Thus  reversal  is  automatic  if  the  court  taking  the  plea  does   not
substantially  comply  with  the  requirements  of  the  rule.    In   these
circumstances, we are strictly enforcing the rule.
      When the appeal occurs in  the  context  of  a  claim  of  ineffective
assistance of counsel, we have applied  essentially  the  same  remedy  with
some modification if the plea lacks a factual basis.  See,  e.g.,  State  v.
Hack, 545 N.W.2d 262, 263 (Iowa 1996).  When the claim is lack of a  factual
basis, two possible remedies exist.  State v. Mitchell, 650 N.W.2d 619,  621
(Iowa 2002) (per curiam).  If the record establishes that the defendant  was
charged with the wrong crime, we have vacated  the  judgment  of  conviction
and sentence and remanded for dismissal  of  the  charge.   Id.;  Hack,  545
N.W.2d at 263.  In those circumstances, we allow the State  to  reinstate  a
charge  dismissed  in  contemplation  of  a  valid  plea  or  re-indict  the
defendant under a  code  section  supportable  by  the  available  evidence.
Hack, 545 N.W.2d at 263.  But if it is possible that a factual  basis  could
be shown, the more appropriate remedy is to vacate the sentence  and  remand
for further proceedings to give the State  an  opportunity  to  establish  a
factual basis.  Mitchell, 650 N.W.2d at 621.
      The net result of Mitchell and Hack is that we presume prejudice, that
is, we apply a prejudice per se rule, which is  contrary  to  the  prejudice
prong of a claim for ineffective assistance of counsel.   Ordinarily,  under
the prejudice prong of a claim for ineffective  assistance  of  counsel,  we
apply the prejudice requirement in Strickland v. Washington, 466  U.S.  668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) when  a  defendant  is  claiming  a
violation  of  his  rights  under  the  Sixth  Amendment  to   the   Federal
Constitution.  Under the Strickland requirement, “[t]he defendant must  show
that  there  is  a  reasonable   probability   that,   but   for   counsel’s
unprofessional  errors,  the  result  of  the  proceeding  would  have  been
different.”  466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.   The
prejudice requirement was based on the Court’s conclusion that  “[a]n  error
by counsel, even if professionally unreasonable, does  not  warrant  setting
aside the judgment of a criminal proceeding if the error had  no  effect  on
the judgment.”  Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696.
      In Hack, we expressed our reasons for refusing to apply the Strickland
prejudice requirement in a claim of ineffective  of  assistance  of  counsel
arising out of a guilty plea that lacks a factual basis:

           The court of appeals affirmed Hack’s conviction, preserving  the
      allegation of ineffective assistance  of  counsel  for  postconviction
      review.  Its decision rested on the belief that counsel may  have  had
      strategic  reasons  for  permitting  his  client   to   plead   guilty
      notwithstanding  the  lack  of  a  factual  basis.    Endorsing   such
      strategies, however, would erode the integrity of all  pleas  and  the
      public’s confidence in our criminal justice system.  For this  reason,
      they cannot be permitted.

545 N.W.2d at 263 (emphasis added) (citations omitted).
      I submit the same reasons support a refusal to  apply  the  Strickland
prejudice requirement when defendants plead guilty  without  being  informed
of the maximum possible punishment  they  face.   White  involved  a  direct
appeal in which we concluded that a failure to inform the defendant  of  the
possibility of consecutive sentences rendered his guilty  plea  involuntary.
587 N.W.2d at 241.  We said in White:

      “Duration of incarceration unquestionably goes to the  very  heart  of
      voluntariness required for a valid waiver of a  defendant’s  right  to
      trial on the charge alleged . . . .
           It is virtually self-evident  that  a  defendant’s  decision  to
      plead guilty . . . to a  criminal  charge  is  a  grave  and  personal
      judgment, which a defendant should not be  allowed  to  enter  without
      full comprehension of possible  consequences  of  conviction  by  such
      plea.  Whether it be the maximum term of  imprisonment  authorized  by
      the statute prescribing a penalty for conviction of a crime or whether
      it be a combination of terms of imprisonment imposed as penalties  for
      convictions of separate crimes, duration of possible  imprisonment  is
      an important  factor  affecting  any  defendant’s  intelligent  choice
      between the alternatives confronting a  defendant—going  to  trial  or
      entering a plea of guilty . . . .  Anyone unaware  that  the  term  or
      duration of  incarceration  acutely  affects  a  defendant’s  decision
      regarding a guilty . . . plea in a criminal case is oblivious  to  one
      of the realities in our system for efficient criminal justice.”

Id. at 246 (citation omitted).
      In terms of deprivation of due process, I equate a failure  to  inform
defendants of the maximum possible punishment with a failure to establish  a
factual basis.  As the above quote so eloquently suggests, nothing  is  more
important to defendants  contemplating  a  plea  than  knowing  the  maximum
possible punishment they face.  Rule 2.8(2)(b) requires a factual basis  for
a plea as well as requiring  the  court  to  inform  the  defendant  of  the
maximum  possible  punishment.   Both  requirements  go  to  the  heart   of
voluntariness.  Moreover, contrary to the  majority’s  view,  a  failure  to
abide by  either  requirement  violates  the  spirit  and  purpose  of  rule
2.8(2)(b) and erodes the integrity  of  the  plea  process  along  with  the
public’s confidence in the criminal justice system.
      In State v. Stallings, we held that trial counsel was ineffective  for
failing to comply with a rule to ensure that the  defendant’s  waiver  of  a
jury trial was knowing, voluntary, and intelligent.  658 N.W.2d 106,  111-12
(Iowa 2003).  In coming to that conclusion, we did not apply the  Strickland
prejudice requirement but instead we presumed prejudice.  In  doing  so,  we
said:  “Because the right to a jury trial is so fundamental to  our  justice
system, we conclude this is one  of  those  rare  cases  of  a  ‘structural’
defect in which prejudice is  presumed.”   Id.  at  112.   It  goes  without
saying that a failure to  inform  the  defendant  of  the  maximum  possible
punishment  renders  the  plea  defective.   Because  liberty  is   such   a
fundamental aspect of the Due Process Clause,  I  would  similarly  consider
such a plea a structural defect  in  which  prejudice  should  be  presumed.
Moreover, the prejudice resulting from such a plea is the relinquishment  of
a constitutional right to a trial by jury, Meier v. State, 337  N.W.2d  204,
208 (Iowa 1983), which is fundamental to our justice system, Stallings,  658
N.W.2d at 112.  Although the majority mentions  Stallings,  it  neglects  to
answer the question why the failure to advise a  defendant  of  the  maximum
possible punishment in a plea is not a structural defect.  As in  Stallings,
Straw waived his  right  to  a  jury  trial  in  a  plea  process  that  was
constitutionally defective.
      What I am suggesting is not novel.  In Pennsylvania  v.  Persinger,  a
case we cited with approval in White, the trial  court  imposed  consecutive
sentences following a plea that was  devoid  of  any  mention  of  potential
consecutive sentences.  615 A.2d 1305, 1307 (Pa. 1992).  The superior  court
affirmed.  Id. at 1306.  The sole issue on appeal to the  supreme  court  of
Pennsylvania was whether trial counsel was ineffective for failing  to  file
a motion to withdraw defendant’s guilty plea.  Id.  Although  the  defendant
was informed of the maximum sentence possible on each count,  the  defendant
was not informed that the sentences could be imposed consecutively.  Id.  at
1307.  Reversing and remanding the case for  trial,  the  supreme  court  of
Pennsylvania stated:

      Requiring the trial court to tell the defendant that the sentences may
      be imposed consecutively and what the total aggregate  sentence  could
      be will not significantly lengthen the colloquy  or  place  any  undue
      burden on the court.  Accordingly, we find that the  absence  of  this
      inquiry from the transcript renders  the  colloquy  defective.   As  a
      result,  appellant  has  suffered  a  manifest  injustice.   We   find
      therefore, that appellant’s  claim  has  merit.   We  also  find  that
      because there were adequate  grounds  for  withdrawal  of  appellant’s
      plea, counsel’s failure to seek withdrawal  of  appellant’s  plea  was
      prejudicial to appellant.

Id. at 1308 (emphasis added); accord Pennsylvania v. Jones, 640  A.2d  1330,
1335 (Pa. Super. Ct. 1994).  A later superior court  decision  characterized
this holding as a per se prejudice rule.  Pennsylvania v. Stanley, 830  A.2d
1021, 1026 (Pa. Super. Ct. 2003); see also North Dakota v.  Schumacher,  452
N.W.2d 345, 347-48 (N.D. 1990) (on appeal per se prejudice rule was  applied
in the context of a claim for ineffective assistance of counsel because  the
trial court failed to abide by the statutory rule  requiring  the  court  to
advise the defendant of the mandatory minimum punishment, if  any,  and  the
maximum possible punishment; defendant was not informed at the plea  of  the
mandatory minimum sentence required  by  the  charge  to  which  he  pleaded
guilty); Hinton v. Hill, 105 P.3d  923,  926  (Or.  Ct.  App.  2005)  (court
applied per se prejudice rule in the context  of  a  claim  for  ineffective
assistance  of  counsel  because  the  trial  court  failed  to  advise  the
defendant of the maximum punishment required by the  charges  to  which  she
pleaded guilty).
      In the course of its opinion,  the  court  in  Persinger  quoted  with
approval this passage from one of its earlier cases:

      “[T]he decision to plead guilty to a charge could not be  accepted  as
      being knowingly and intelligently entered without  an  assurance  that
      the accused fully comprehended the maximum punishment  that  might  be
      imposed for his conduct.  This information is  obviously  an  integral
      part of the knowledge that should be possessed by one  who  is  called
      upon to make the difficult decision whether to surrender his right  to
      trial and to place himself at the mercy of the sentencing  court.   No
      civilized society could tolerate the waiver of such basic rights  from
      one who was unaware of or misinformed as to such a critical fact.”

615 A.2d at 1307 (citation omitted); see also Henry v. Alabama, 639  So.  2d
583, 584 (Ala. Crim. App. 1994) (holding that defendant’s right to know  the
possible sentence he faces is absolute  and  the  fact  he  was  misinformed
about the minimum and maximum sentence rendered  his  plea  involuntary  and
the error was not harmless); cf. Kleppinger v. Florida, 884 So. 2d 146,  148
(Fla. Dist. Ct. App. 2004) (“A defendant is  inherently  prejudiced  by  his
inability, due to his  counsel’s  neglect,  to  make  an  informed  decision
whether to plea  bargain.”).   This  passage  from  Persinger  suggests  the
Pennsylvania Supreme Court considers the failure to advise the defendant  of
the maximum possible punishment that might be imposed  a  structural  defect
in the plea process.
      That brings me to Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985), a decision upon which the majority  heavily  relies.   In
Hill, the defendant filed a federal habeas corpus action alleging  that  his
guilty plea was involuntary because he was  misinformed  as  to  his  parole
eligibility.  474 U.S. at 54-55, 106 S. Ct. at 368, 88 L.  Ed.  2d  at  207.
He claimed he was told that if he pleaded guilty he  would  become  eligible
for parole after serving one-third of his sentence when in  fact  to  become
eligible for parole he was required to serve one-half of his sentence.   Id.
at 55, 106 S. Ct. at 368, 88 L. Ed. 2d at 207.   The  question  was  whether
the defendant was entitled to a hearing on his habeas  corpus  action.   The
majority  concluded  that  the  defendant  failed  to  allege  the  type  of
prejudice necessary to satisfy the Strickland test.  To satisfy  that  test,
the court reasoned that the defendant had to allege  in  his  habeas  corpus
action that had counsel correctly informed him about his parole  eligibility
date, he would not have pleaded guilty and would have insisted on  going  to
trial.  Because the defendant did  not  make  such  allegations,  the  Court
concluded that his claim of ineffective assistance of counsel  failed  as  a
matter of law.  As a result, he was not entitled to a hearing.  Id.  at  60,
106 S. Ct. at 371, 88 L. Ed. 2d at 211.
      It is interesting  to  note  that  the  concurring  opinion  found  no
professional error—the first prong of the Strickland test.   In  support  of
this finding, the concurring opinion noted the record  was  clear  that  the
defendant did not advise his attorney of a previous felony conviction  which
required defendant under state law to serve one-half rather  than  one-third
of his sentence.  Id. at 61-62, 106 S. Ct. at 371-72, 88 L. Ed.  2d  at  212
(White, J., concurring).  Additionally, the concurring  opinion  found  that
the record supported  sufficient  facts  to  show  there  was  a  reasonable
probability that, but for counsel’s errors, the  defendant  would  not  have
pleaded guilty and would have insisted on going to trial.  In  sum,  because
the  defendant  did  not  allege  facts  showing  professional  error,   the
concurring opinion concluded the Court should  deny  the  hearing  for  that
reason.  Id. at 62-63, 106 S. Ct. at 372-73, 88 L. Ed. 2d at 212-13.
      In  any  event,  I  think  Hill  is  distinguishable.   In  Hill,  the
misinformation by the defendant’s  attorney  was  about  parole  eligibility
rather than  on  the  maximum  possible  punishment  a  defendant  faces  in
pleading guilty.  Parole eligibility is a collateral consequence of a  plea.
 Kinnersley v. State, 494 N.W.2d 698, 700 (Iowa 1993),  overruled  on  other
grounds by State v. Kress, 636 N.W.2d  12,  20  (Iowa  2001).   The  maximum
possible punishment a  defendant  faces  in  pleading  guilty  is  a  direct
consequence of a plea.  Id.  A  court  need  not  inform  the  defendant  of
collateral consequences of a plea while it must inform the defendant of  the
direct consequences of a plea.  Id.   The  majority  fails  to  mention  and
explain away this distinction.
      There is a vast difference between  a  court’s  failure  to  advise  a
defendant  about  a  maximum   possible   punishment   and   an   attorney’s
misinformation about parole eligibility.  Hill and Kress are good  examples.
 The defendant in Hill was facing a possible life  sentence  on  charges  of
first-degree murder and theft.  474 U.S. at 53-54, 106 S. Ct. at 368, 88  L.
Ed. 2d at 207.  His counsel negotiated a plea bargain under which the  State
would recommend concurrent prison sentences of  thirty-five  years  for  the
murder charge and ten years for the theft charge.  Id. at 54, 106 S. Ct.  at
368, 88 L. Ed. 2d at 207.   The  trial  judge  sentenced  the  defendant  in
accordance with the plea agreement.   Id.   Therefore,  notwithstanding  the
attorney’s alleged misinformation about parole  eligibility,  the  defendant
by pleading guilty at least had the chance to avoid  a  life  sentence.   So
the defendant indeed had an incentive to plead guilty.
      Contrast that situation with one in which the court misinforms or does
not inform the defendant about the maximum possible punishment in  violation
of our rule and thereafter the defendant pleads guilty.   That  was  exactly
the situation in Kress.  In Kress, the  State  charged  the  defendant  with
procurement of a prescription drug by  forgery,  which  carried  a  ten-year
sentence.  636 N.W.2d at 15, 17.  There was no plea agreement,  id.  at  16,
and therefore Kress had no incentive to plead guilty.  In  fact,  the  State
also alleged that Kress had been previously  convicted  of  a  drug  offense
that enhanced the penalty.  Id.  at  16-18.   Because  of  a  previous  drug
conviction, Kress  would  have  to  serve  one-third  of  the  indeterminate
sentence.  Id. at 17-18.  The court  incorrectly  informed  Kress  that  the
sentencing judge  could  waive  the  one-third  mandatory  minimum  sentence
requirement.  Id. at 16.   Kress  then  pleaded  guilty.   Id.   Later,  the
district court imposed a ten-year indeterminate sentence and required  Kress
to serve at least one-third of her sentence.  Id.
      By pleading guilty, Kress gave up her constitutional right to  a  jury
trial based on the incorrect information given at  the  plea.   Id.  at  22.
Had Kress known the true facts, she had nothing to lose  and  everything  to
gain by going to trial because a jury may have found her not  guilty.   What
possible  reason  would  there  have  been  to  preserve  Kress’s  claim  of
ineffective assistance of counsel on the prejudice prong of  the  Strickland
test rather than just setting aside the plea and judgment of conviction  and
allowing her to plead anew?  The result would have been the same  in  either
case.  It all boils down  to  this:   “A  guilty  plea  must  represent  the
informed,  self-determined  choice  of  the  defendant   among   practicable
alternatives; a guilty plea cannot be a conscious, informed  choice  if  the
accused” does not know of or is misinformed about the maximum punishment  he
or she faces by pleading guilty.  Hawkman v. Parratt, 661  F.2d  1161,  1170
(8th Cir. 1981).
      The majority faults Kress  because  it  fails  to  consider  the  Hill
analysis.  At the time we  decided  Kress,  the  State  apparently  did  not
believe Hill was applicable because it did not  even  mention  Hill  in  its
brief.
      The other  distinguishing  factor  is  the  structural  defect  aspect
surrounding a  failure  to  inform  a  defendant  of  the  maximum  possible
punishment, which I mentioned earlier.  In Hack, which  was  decided  eleven
years after Hill, we applied a per se prejudice rule in the  context  of  an
ineffective assistance of counsel claim arising  out  of  a  plea  in  which
there was a lack of factual basis.  In that case we did  not  even  consider
Hill.  The Pennsylvania Supreme Court likewise decided Persinger after  Hill
and applied a per se  prejudice  rule  in  the  context  of  an  ineffective
assistance of counsel claim arising out of  a  plea  in  which  the  maximum
possible punishment was not mentioned.  It too did not consider Hill.
      Under the per se prejudice  approach,  I  suggest  the  following.   I
would, as we did in Kress, 636 N.W.2d at 22, presume prejudice,  vacate  the
judgment of sentence and conviction,  and  remand  the  case  to  allow  the
defendant to plead anew.  This disposition, of course, would, in cases  like
the one before us, invalidate a plea  bargain  involving  the  dismissal  of
other charges.  I would therefore on remand allow  the  State  to  reinstate
the  charges,  if  it  so  desired,  and  to  file  any  additional  charges
supportable by the available evidence.  In answer to the majority’s  second-
bite-at-the-apple claim, allowing the State to reinstate  charges  and  file
additional charges should eliminate any incentive on the part of  defendants
to claim they were not advised of the maximum possible  punishment  when  in
fact they were so advised.  These remedies are analogous to the remedies  we
apply in claims of ineffective assistance of counsel  based  on  a  lack  of
factual basis.  Moreover,  contrary  to  the  majority’s  conclusion,  these
remedies preserve the integrity of the process while at the same  time  they
serve the purpose and spirit of rule 2.8(2)(b).
      Finally, the approach I suggest would conserve judicial  resources  by
eliminating a  postconviction  hearing  and  an  appeal  in  the  event  the
defendant lost in the postconviction process.  This  makes  far  more  sense
than the approach the majority takes.
      For all of  these  reasons,  I  would  vacate  the  court  of  appeals
decision; I would also vacate Straw’s judgment of  sentence  and  conviction
and remand to allow him to plead anew.  In addition, I would also allow  the
State on remand to reinstate the charges it dismissed as part  of  the  plea
bargain and to file any additional  charges  supportable  by  the  available
evidence.
      Wiggins, J., joins this dissent.

-----------------------
      [1]For the third-offense possession charge, the  State  recommended  a
five-year prison sentence, a fine of $750, and a 180-day license  revocation
along with other related court costs.  For the driving-while-barred  charge,
the State recommended a concurrent  two-year  prison  sentence  and  a  $500
fine.
      [2]Prior to the enactment of rule 2.24(3), a defendant could  directly
appeal his or her conviction based on a guilty plea.  See  State  v.  Fluhr,
287 N.W.2d 857, 860 (Iowa 1980) (reversing guilty plea conviction on  direct
appeal because the  court  did  not  substantially  comply  with  procedural
guidelines when accepting the guilty plea).
      [3]The State claims Straw knew there was a possibility  the  sentences
could be consecutive  because  the  plea  agreement  recommended  concurrent
sentences.  This argument is similar to  the  argument  the  State  made  in
State v. White, 587 N.W.2d 240, 246 (Iowa 1998).  In  White,  the  defendant
pled guilty to two counts of possession of methamphetamine  with  intent  to
deliver, but the district court failed to inform  the  defendant,  prior  to
the acceptance of his guilty  plea,  that  consecutive  sentences  could  be
imposed.  587 N.W.2d at 246.  The State argued the district court  satisfied
rule 2.8(2)(b) by informing the defendant what  the  penalty  was  for  each
charge, because the defendant could “figure  out  by  implication  that  the
sentences could be ordered to be served consecutively.”   Id.   We  rejected
this argument  because  it  left  the  defendant  “partially  informed,  but
uninformed  of  the  true  maximum  possible  punishment  of  twenty   years
imprisonment  coming  from  consecutive  sentences.”   Id.   We  reject  the
State’s similar argument in this case.
      [4]The  rare  instances  where  we  presume   prejudice   are   easily
distinguishable from the  present  case.   We  presume  prejudice  when  the
defendant is denied his or her right to a jury trial because the right to  a
jury trial is one of only a handful  of  “important”  constitutional  rights
that are fundamental to our justice system.  State v. Stallings, 658  N.W.2d
106, 112 (Iowa 2003) (citing McGurk v. Stenberg,  163  F.3d  470,  474  (8th
Cir. 1998) (“Despite the strong presumption that  constitutional  error  can
be harmless, we conclude that the denial of a jury  trial  is  a  structural
error subject to automatic reversal.”) (Internal  quotations  and  citations
omitted.)).  We also presume prejudice when there was no factual  basis  for
the plea because we do not want to convict people for crimes  they  did  not
commit.  State v. Hack, 545 N.W.2d  262,  263  (Iowa  1996);  see  State  v.
Sanders, 309 N.W.2d 144, 145 (Iowa Ct. App. 1981).   In  the  present  case,
neither of these pressing concerns exists.  Straw does not  contend  he  did
not commit the crime, and he does not contend he was  denied  the  right  to
trial.  Instead, he argues his decision not to go to trial would  have  been
different had he known the maximum punishment for the  crime  he  committed.
Rather than presume his decision would have been different, Straw  ought  to
prove that point on his own.
      [5]The prejudice suffered  by  a  defendant  who  does  not  know  the
potential length of imprisonment for his guilty plea is  unique  because  it
“‘is virtually self-evident that a defendant’s decision to plead guilty .  .
. is a grave and personal judgment, which a defendant should not be  allowed
to enter without full comprehension of possible consequences  of  conviction
by such plea.”’  White, 587 N.W.2d at  246  (quoting  State  v.  Irish,  394
N.W.2d  879,  884-85  (Neb.  1986)  (Shanahan,  J.,  dissenting)).    Anyone
“unaware that the term  or  duration  of  incarceration  acutely  affects  a
defendant’s decision regarding a guilty . . . plea . .  .  is  oblivious  to
one of the realities in our system for efficient criminal justice.”  Id.


