                    IN THE COURT OF APPEALS OF IOWA

                                      No. 14-2142
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASMIN ALAGIC,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, James D. Coil,

District Associate Judge.



      A criminal defendant appeals his sentence after pleading guilty to driving

while barred and operating while intoxicated, third offense. AFFRIMED.



      David Barajas of Gaudineer & George L.L.P., West Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

       Jasmin Alagic appeals his sentence after pleading guilty to driving while

barred and operating while intoxicated, third offense. He argues his attorney was

constitutionally ineffective for failing to ensure the presence of a Bosnian

interpreter at his sentencing hearing. We find the record inadequate to decide

Alagic’s ineffective-assistance-of-counsel claim on direct appeal. We therefore

affirm his sentence and preserve the claim for postconviction proceedings.

I. Background Facts and Proceedings

       On September 3, 2014, the State charged Alagic by trial information with

three crimes: driving while barred as a habitual offender, an aggravated

misdemeanor, in violation of Iowa Code sections 321.560 and 321.561 (2013);

operating while intoxicated, third offense, a class “D” felony, in violation of Iowa

Code section 321J.2; and driving while license denied or revoked, a serious

misdemeanor, in violation of Iowa Code section 321J.21.

       On September 18, 2014, Alagic filed a written plea of not guilty that

included the statement, “I . . . can read, write, speak and understand the BASIC

English language. While I have requested an interpreter for trial, I understand

the purpose of this document.” Alagic withdrew his not-guilty plea at a hearing

on October 23, 2014, and entered plea of guilty to driving while barred and

operating while intoxicated, third offense. A Bosnian interpreter was present for

the plea hearing pursuant to the court’s order. The court’s order appointing the

interpreter includes the phrase “interpreter for duration of the case,” but the

interpreter submitted his claim for fees for the case following the plea hearing.
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       Alagic was sentenced on November 13, 2014. No Bosnian interpreter

was present, and there was no mention of the absence of the interpreter. Alagic

was sentenced to a term of incarceration not to exceed two years for driving

while barred and a term of incarceration not to exceed five years for operating

while intoxicated, third offense. The district court ordered that the two prison

terms run concurrently and be served at the Iowa Medical and Classification

Center at Oakdale, Iowa.       The district court also revoked Alagic’s driving

privileges for six years and imposed the applicable fines.

       The following exchanges occurred at the sentencing hearing immediately

prior to and immediately after the district court imposed its sentence:

               THE COURT: Mr. Alagic, under Iowa law you have the right
       to speak on your own behalf in addition to what your attorney might
       have already said before sentence is imposed. Is there anything
       you wish to say?
               THE DEFENDANT: No.
               THE COURT: Would you please stand.
               THE DEFENDANT: (Complied.)
               ....
               THE COURT: Do you have any questions about your
       sentence?
               THE DEFENDANT: Yes. So—
               THE COURT: You have to speak up, please.
               THE DEFENDANT: So I go to prison, right?
               DEFENSE COUNSEL: Oakdale is the Iowa Medical
       Classification Center.
               THE DEFENDANT: For how long?
               DEFENSE COUNSEL: Not to exceed five years.
               THE COURT: Well, it will be a sentence of not to exceed five
       years. When and if you are paroled will be determined by the
       parole board.
               DEFENSE COUNSEL: The mandatory minimum is thirty
       days. You’ve been in custody well in excess of that and will get
       credit for that. It’s really—
               THE COURT: You will receive credit for any time previously
       served while you’ve been pending trial in jail. Any other questions?
               THE DEFENDANT: No.
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       Alagic now appeals.

II. Standard of Review

       We may decide ineffective-assistance-of-counsel claims on direct appeal if

we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.

This is our standard because such claims have their basis in the Sixth

Amendment to the United States Constitution. State v. Clay, 824 N.W.2d 488,

494 (Iowa 2012).

III. Discussion

       Alagic argues his counsel was ineffective for failing to ensure the

presence of a Bosnian interpreter at his sentencing hearing. He further argues

he was prejudiced because he was unable to fully understand the proceedings

and had only a limited ability to assist his attorney in presenting mitigating

sentencing factors to the district court.

       In order to prevail on his claim of ineffective assistance of counsel, Alagic

must establish both that “(1) his trial counsel failed to perform an essential duty,

and (2) this failure resulted in prejudice.” State v. Straw, 709 N.W. 2d 128, 133

(Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).

Both elements must be proved by a preponderance of the evidence. Straw, 709

N.W.2d at 133. When a claim of ineffective assistance of counsel is raised on

direct appeal, an appellate court may either “decide the record is adequate to

decide the claim or may choose to preserve the claim for [postconviction

proceedings].” Iowa Code § 814.7(3) (2015).
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      We find the record before us is not sufficient to address Alagic’s claim of

ineffective assistance of counsel. It is impossible to tell what Alagic’s level of

English proficiency is or which portions, if any, of the sentencing proceedings he

was unable to understand. Alagic obviously has some degree of proficiency, as

he was able to converse in English with both the district court and his counsel.

We have no explanation before us as to why Alagic’s counsel chose to proceed

without an interpreter, given that the district court had previously deemed one

necessary. Finally, the record does not contain information about the mitigating

factors Alagic would have presented to the district court in furtherance of a more

favorable sentence.

      Because we find the record before us is not sufficient to decide Alagic’s

claim, we affirm the district court’s sentence and preserve the claim for

postconviction proceedings so that the record can be more fully developed.

      AFFIRMED.
