              IN THE SUPREME COURT OF IOWA
                              No. 06–1812

                          Filed June 26, 2009


STATE OF IOWA,

      Appellee,

vs.

NATHAN JOHN CARROLL,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Bobbi M.

Alpers (guilty plea) and John A. Nahra (sentencing), Judges.



      Nathan Carroll seeks further review of a court of appeals decision

affirming his conviction following a guilty plea.    Carroll asserts his

conviction based on the guilty plea was the result of ineffective

assistance of counsel and should be set aside.      DECISION OF THE
COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

AFFIRMED.



      Kent A. Simmons, Davenport, for appellant.



      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, William E. Davis, County Attorney, and Amy DeVine,

Assistant County Attorney, for appellee.
                                     2

HECHT, Justice.

        We granted further review of a decision of the court of appeals

affirming Nathan Carroll’s conviction and sentence for possession with

intent to deliver marijuana. Carroll contends the conviction based upon

his guilty plea should be set aside because the plea was a product of

ineffective assistance of counsel. In particular, he contends his plea was

neither voluntary nor intelligent because his attorney was ineffective in

failing to file a motion to suppress evidence obtained as a result of a

warrantless search, and in failing to give proper advice in advance of the

plea.        We conclude the record is inadequate to decide Carroll’s

ineffective-assistance-of-counsel claim.      Accordingly, we affirm his

conviction and sentence, and we preserve the claim for possible

postconviction relief proceedings.

        I.      Factual and Procedural Background.

        In February 2006 police officers responded to a report of a party

with underage consumption of alcohol in LeClaire, Iowa. Upon arrival at

the address to which they were dispatched without a search warrant, the

officers found a dwelling, and behind it, a barn from which the sounds of

the party were emanating.       After following an unidentified male and

female through a door into the barn, the officers observed several

juveniles drinking alcohol.   A preliminary breath test disclosed Carroll

had consumed alcohol. He was cited, along with several other juveniles,

for possession of alcohol under the legal age.     During a search of the

barn, the officers located a marijuana “blunt,” a baggie filled with

marijuana, and a brick of marijuana. The officers arrested Cory Wulf,

the host of the party, for illegal possession of the marijuana.

        The next morning Carroll appeared at the LeClaire Police

Department. Carroll spoke with an officer who prepared a written report
                                           3

stating Carroll claimed ownership of the drugs found the previous

evening in the Wulf barn.            Carroll was subsequently charged with

possession of marijuana with intent to deliver in violation of Iowa Code

section 124.401(1)(d) (2005) and possession of the drugs without a drug

tax stamp in violation of Iowa Code sections 453B.1(3)(b), 453B.7(1),

453B.12, and 703.1.

      Carroll and the State reached a plea agreement.                       Under the

agreement, Carroll agreed to plead guilty to the drug possession with

intent to deliver charge, and the State agreed to dismiss the drug tax

stamp    charge      and    recommend          against   incarceration. 1      Carroll

subsequently pled guilty to possession with intent to deliver, and the

drug tax stamp charge was dismissed consistent with the plea

agreement.

      The district court rejected Carroll’s request for a deferred judgment

at the subsequent sentencing hearing, noting Carroll continued to use

marijuana during the months following the incident which was the

subject of the guilty plea in this case. 2 Doubting Carroll’s appreciation of

the seriousness of his conduct, the court sentenced Carroll to a term of

imprisonment not to exceed five years, suspended the sentence, and
ordered a term of probation of two years. 3

      Carroll appealed his conviction asserting his trial counsel provided

ineffective assistance by failing to (1) file a motion to suppress evidence

seized in an illegal search of the Wulf premises, (2) challenge the

sufficiency of the evidence to support a conviction on the drug

      1The  State agreed to make the sentencing recommendation “recognizing the
Court may grant a deferred judgment.”

      2Carroll candidly admitted his continued use of marijuana during an interview
with the presentence investigator.

      3The   presentence investigation report recommended probation in this case.
                                           4

possession charges, and (3) adequately prepare Carroll for the sentencing

proceeding, and present the case supporting imposition of a deferred

judgment at the sentencing hearing.                  Carroll also challenged his

sentence, contending the district court abused its discretion by basing its

decision solely upon Carroll’s continued use of marijuana after

February 24, 2006. We transferred the case to the court of appeals for

decision, and that court affirmed the conviction and sentence. 4

       Carroll sought further review of the decision of the court of

appeals.      We granted Carroll’s request for review to consider whether

ineffective    assistance     of   counsel     rendered      Carroll’s    guilty    plea

uninformed and involuntary.

       II.     Discussion.

       A.     Applicable Legal Principles.         A claimant alleging ineffective

assistance of counsel must prove (1) counsel failed to perform an

essential duty and (2) prejudice resulted.            State v. Risdal, 404 N.W.2d

130, 131–32 (Iowa 1987).            To establish prejudice, a claimant must

demonstrate “ ‘there is a reasonable probability that, but for the

counsel’s unprofessional errors, the result of the proceeding would have

been different.’ ” State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008)

(quoting State v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006)); see also

Strickland v. Washington, 466 U.S. 688, 694, 104 S. Ct. 2052, 2068, 80

L. Ed. 2d 674, 698 (1984). In the context of a guilty plea, an applicant

for postconviction relief must prove “ ‘a reasonable probability that, but

for counsel’s alleged errors, he [or she] would not have pled guilty and

would have insisted on going to trial.’ ” State v. Straw, 709 N.W.2d 128,


       4The   court of appeals concluded Carroll’s guilty plea waived any claims of
ineffective assistance of counsel as to the failure to file a motion to suppress and the
failure to challenge the sufficiency of the evidence, concluding those claims were “not a
circumstance that bears on the knowing and voluntary nature of a plea.”
                                     5

136 (Iowa 2006) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct.

366, 370, 88 L. Ed. 2d 203, 210 (1985)). The probability of a different

result must be “ ‘sufficient to undermine confidence in the outcome.’ ”

Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008) (quoting Reynolds,

746 N.W.2d at 845).       We will address on direct appeal claims of

ineffective assistance of counsel only if we determine the development of

an additional factual record would not be helpful and these elements can

be decided as a matter of law. See State v. Tesch, 704 N.W.2d 440, 450

(Iowa 2005).

      It is well established that a defendant’s guilty plea waives all

defenses and objections which are not intrinsic to the plea.       State v.

Antenucci, 608 N.W.2d 19, 19 (Iowa 2000).         The State contends the

claims that the warrantless search of Wulf’s barn was illegal and that

evidence obtained as a consequence of that search should have been

suppressed were waived by Carroll’s guilty plea because they are not

matters intrinsic to the plea.     Carroll controverts the State’s waiver

argument, positing his claims on appeal were not waived because they

are based on the proposition that his defense counsel was ineffective in

failing to (1) comprehend that the warrantless search of the barn was

illegal, (2) file a motion to suppress all evidence derived from the search,

and (3) properly advise Carroll as to whether he should enter a guilty

plea in light of the circumstances surrounding the warrantless search of

Wulf’s barn.   These claimed failures of counsel, Carroll asserts, were

intrinsic to the plea because they caused him to improvidently plead

guilty to a charge that the State could not have proven had counsel

performed effectively. Our resolution of this issue is aided by a review of

the case law addressing the extent to which a guilty plea waives
                                    6

defendant’s defenses and objections and eliminates them as a ground for

relief on direct appeal and in postconviction proceedings.

      A defendant’s guilty plea is not necessarily rendered involuntary

merely because it follows his defense counsel’s mistaken assessment of

the admissibility of the State’s evidence. Parker v. North Carolina, 397

U.S. 790, 796–97, 90 S. Ct. 1458, 1462, 25 L. Ed. 2d 785, 791–92

(1970). This proposition is based upon the fact that criminal cases in

general, and guilty pleas in particular, are characterized by considerable

uncertainty:

      [T]he decision to plead guilty before the evidence is in
      frequently involves the making of difficult judgments. All the
      pertinent facts normally cannot be known unless witnesses
      are examined and cross-examined in court. Even then the
      truth will often be in dispute. In the face of unavoidable
      uncertainty, the defendant and his counsel must make their
      best judgment as to the weight of the State’s case. Counsel
      must predict how the facts, as he understands them, would
      be viewed by a court. If proved, would those facts convince a
      judge or jury of the defendant’s guilt? On those facts would
      evidence seized without a warrant be admissible? Would the
      trier of fact on those facts find a confession voluntary and
      admissible? Questions like these cannot be answered with
      certitude; yet a decision to plead guilty must necessarily rest
      upon counsel’s answers, uncertain as they may be. Waiving
      trial entails the inherent risk that the good-faith evaluations
      of a reasonably competent attorney will turn out to be
      mistaken either as to the facts or as to what a court’s
      judgment might be on given facts.

McMann v. Richardson, 397 U.S. 759, 769–70, 90 S. Ct. 1441, 1448, 25

L. Ed. 2d 763, 772–73 (1970) (citing Brady v. United States, 397 U.S.

742, 756–57, 90 S. Ct. 1463, 1473–74, 25 L. Ed. 2d 747, 760–61 (1970)).

Thus, “a defendant’s plea of guilty based on reasonably competent advice

is an intelligent plea not open to attack on the ground that counsel may

have misjudged the admissibility of the defendant’s confession.” Id. at

770, 90 S. Ct. at 1448, 25 L. Ed. 2d at 773; see also State v. Freilinger,

557 N.W.2d 92, 93 (Iowa 1996) (stating guilty plea “ ‘waives all
                                     7

irregularities except that the information or indictment charges no

offense and the right to challenge the plea itself’ ” (quoting State v. Door,

184 N.W.2d 673, 674 (Iowa 1971))); State v. Culbert, 188 N.W.2d 325,

326 (Iowa 1971) (same).

      A defendant can, however, challenge the validity of his guilty plea

by proving the advice he received from counsel in connection with the

plea was not within the range of competence demanded of attorneys in

criminal cases. Tollett v. Henderson, 411 U.S. 258, 265–67, 93 S. Ct.

1602, 1607–08, 36 L. Ed. 2d 235, 242–43 (1973); Zacek v. Brewer, 241

N.W.2d 41, 48–49 (Iowa 1976) (noting that although a defendant may

not, after entry of a guilty plea, raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the plea, he

may attack the voluntary and intelligent character of the plea by showing

the advice received from counsel was not within the range of competence

demanded of attorneys in criminal cases).

      “Counsel’s failure to evaluate properly facts giving rise to a
      constitutional claim, or his failure to properly inform himself
      of facts that would have shown the existence of a
      constitutional claim, might in particular fact situations meet
      this standard of proof.”

Zacek, 241 N.W.2d at 49 (quoting Tollet, 411 U.S. at 266–67, 93 S. Ct. at

1608, 36 L. Ed. 2d at 243).       Although we announced in Zacek our

adherence to the rule that a counsel’s breach of duty calling into

question whether a defendant’s guilty plea was intelligently and

voluntarily entered may support a challenge to the plea, our application

of the rule in subsequent cases has created some confusion.

      B.   Application of Legal Principles.        In Speed v. State, 616

N.W.2d 158 (Iowa 2000), an applicant for postconviction relief contended

his guilty plea should be set aside because his attorney provided
                                            8

ineffective assistance in failing to seek suppression of his confession.

616 N.W.2d at 159.          In affirming the district court’s decision denying

Speed’s claim for postconviction relief, our per curiam opinion cryptically

noted the general rule that “claims arising from the denial of a motion to

suppress or from counsel’s failure to investigate or file a motion to

suppress do not survive the entry of a guilty plea.” 5 Id. We now revisit

the general rule and find it lacking in its application to cases in which

defendants on direct appeal or applicants for postconviction relief assert

they would not have pled guilty but for the ineffective assistance of their

counsel.

       Carroll contends his counsel provided ineffective assistance in

failing to file a meritorious motion to suppress evidence derived from an

illegal warrantless search.          For the sake of discussion only, let us

assume two hypothetical cases. In the first case (1) the search of Wulf’s

barn was in fact illegal; (2) all evidence obtained by the State as a

consequence of the search would have been suppressed if a motion

       5In  support of this proposition we cited State v. Culbert, 188 N.W.2d 325 (Iowa
1971), State v. Freilinger, 557 N.W.2d 92 (Iowa 1996), and State v. Sharp, 572 N.W.2d
917 (Iowa 1997). Two of these three cases did not present the question of whether
claimed ineffective assistance of counsel led to unintelligent or involuntary guilty pleas,
and they are therefore not instructive on the issue now before us. Culbert presented on
direct appeal the question whether a guilty plea waived a claim that the defendant’s
confession was involuntary, and the appellant notably did not contend his plea and
conviction should be set aside as a consequence of ineffective assistance of counsel.
188 N.W.2d at 325–26. Similarly, in Freilinger, the appellant brought a direct appeal
following his entry of a guilty plea, but he made no claim that the plea and resulting
conviction should be set aside because his attorney’s ineffectiveness caused the plea to
be unintelligently or involuntarily entered. 557 N.W.2d at 93–94. Of the three cases,
only Sharp presented claims that counsel’s ineffectiveness rendered a guilty plea
unintelligent and involuntary. 572 N.W.2d at 918–19, superseded by statute on other
grounds as recognized in Wyciskalla v. Iowa Dist. Ct., 588 N.W.2d 403, 406–07 (Iowa
1998). In Sharp, we concluded without further analysis that counsel’s failure to
investigate the circumstances surrounding the defendant’s arrest and failure to seek
suppression of a blood test “did not survive the plea of guilty.” Id. Other unspecified
claims of ineffectiveness raised by Sharp were “matters that [bore upon] the question of
whether [his] guilty plea was intelligently and voluntarily entered,” and our decision
preserved them for possible postconviction proceedings. Id. at 919.
                                      9

requesting such relief had been filed; (3) a reasonably competent attorney

would have known or discovered the factual and legal basis for the

meritorious suppression motion, informed Carroll of the likely outcome of

the meritorious motion, requested authority from Carroll to file it, and

advised Carroll not to plead guilty to a felony; (4) Carroll’s attorney failed

to do these things a reasonably competent attorney would have done and

advised Carroll to plead guilty; and (5) Carroll, believing his attorney had

performed effectively, expecting to be convicted at trial of all charges, and

relying on his attorney’s advice, pled guilty. In the second hypothetical

case, we shall assume the circumstances are exactly the same except the

attorney advises Carroll to go to trial, the evidence that should have been

suppressed is admitted, and Carroll is convicted. Our decision in Speed

fails to explain why the law should provide Carroll a remedy under the

circumstances assumed in the second hypothetical, but not in the first.

It is not sensible to hold that the defendant in the first case should bear

the negative consequences of counsel’s ineffective assistance because he

pled guilty, but the defendant in the second case should get a second

chance for justice because he chose a trial.         We conclude there is no

principled explanation for such disparity for in both cases the defendant

did not receive effective counsel guaranteed by the Sixth Amendment and

suffered prejudice. We therefore disavow our decision in Speed insofar

as it suggests claims of ineffective assistance arising from counsel’s

failure to investigate or file a meritorious motion to suppress cannot, as a

matter of law, survive the entry of a guilty plea.

      Faithful application of the rule announced in Zacek precludes

Speed’s broad conclusion that “counsel’s failure to investigate or file a

motion to suppress do not survive the entry of a guilty plea.” Id. We

conclude there are no such categories of breach of duty resulting in
                                       10

prejudice that cannot, as a matter of law, survive a guilty plea.      Only

through a case-by-case analysis will a court be able to determine

whether counsel in a particular case breached a duty in advance of a

guilty plea, and whether any such breach rendered the defendant’s plea

unintelligent or involuntary.   As in any other case in which relief is

requested as a consequence of alleged ineffective assistance of counsel,

the party claiming his counsel provided ineffective assistance in advance

of the entry of a guilty plea must prove counsel breached a duty and

prejudice resulted. Risdal, 404 N.W.2d at 131–32; see Strickland, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The burden to

prove prejudice in this context will require the party seeking relief to

prove a reasonable probability of a different outcome had the breach not

occurred; i.e., that but for counsel’s breach of duty, the party seeking

relief would not have pled guilty and would have elected instead to stand

trial. Straw, 709 N.W.2d at 136; see Strickland, 466 U.S. at 694, 104

S. Ct. at 2068, 80 L. Ed. 2d at 698.

      C. Was Carroll’s Claim of Involuntariness Properly Raised? In

his initial appeal brief, Carroll contended the police officers’ warrantless

entry into and search of the barn were illegal, and asserted his counsel

was therefore ineffective in failing to file a motion to suppress. Carroll

further generally asserted his counsel was ineffective in failing to

properly advise him as to the insufficiency of the State’s evidence to

prove guilt as to the crimes charged, in failing to properly prepare him for

the sentencing colloquy, and in failing to properly present a case in

support of Carroll’s request for a deferred judgment. In its initial brief,

the State asserted Carroll’s guilty plea waived any challenge to

constitutional infirmities in the procedure prior to his guilty plea.

Because Carroll’s initial brief did not expressly claim any errors resulting
                                      11

from counsel’s alleged ineffectiveness were intrinsic to the plea, the State

contended Carroll failed on direct appeal to assert a valid challenge to

the guilty plea. In his reply brief, Carroll expressly asserted for the first

time that his guilty plea was rendered involuntary and unintelligent as a

result of counsel’s ineffective assistance.

        We have repeatedly held we will not consider issues raised for the

first time in a reply brief. Goodenow v. City Council, 574 N.W.2d 18, 27

(Iowa 1998); Mueller v. St. Ansgar State Bank, 465 N.W.2d 659, 660 (Iowa

1991); State v. Willet, 305 N.W.2d 454, 458 (Iowa 1981). Although the

State correctly notes Carroll did not expressly assert in his initial brief

that counsel’s ineffectiveness vitiated the knowing and voluntary

character of the guilty plea, we conclude the assertion was properly

addressed in his reply brief under the circumstances presented here.

Carroll was not required to address the subject of waiver until the State

raised it in its initial brief.   Accordingly, we conclude the question of

whether Carroll’s guilty plea was unknowing and involuntary as a

consequence of his counsel’s ineffective assistance was properly raised

for our review. Having concluded Carroll’s claim was properly raised, we

next consider whether the record is sufficient in this case to determine

whether counsel breached a duty, and whether any such breach caused

prejudice.

        D.   Sufficiency of the Record on Direct Appeal.         Central to

Carroll’s claims that his counsel provided ineffective assistance in

connection with the guilty plea is the proposition that a motion should

have been filed to suppress all evidence derived from the search of Wulf’s

barn.    As counsel has no duty to pursue a meritless issue, State v.

Hoskins, 586 N.W.2d 707, 709 (Iowa 1998), the court must confront the

question whether the search of Wulf’s barn violated Carroll’s Fourth
                                     12

Amendment rights.         The “extent to which the Fourth Amendment

protects people may depend upon where those people are.” Minnesota v.

Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373, 379

(1998). Carroll’s claim of Fourth Amendment protection depends upon

the proposition that, as a social guest at a party, he had a reasonable

expectation of privacy in Wulf’s barn. See Rakas v. Illinois, 439 U.S. 128,

143–44, 99 S. Ct. 421, 430–31, 58 L. Ed. 2d 387, 400–02 (1978) (stating

in order to claim the protection of the Fourth Amendment, a defendant

must demonstrate that he personally has an expectation of privacy in the

place searched, and that his expectation is reasonable).        Although the

text of the Fourth Amendment could be read as extending only to people

in   “their”   houses,   the   Supreme    Court   has   held   that    in   some

circumstances a person may have a legitimate expectation of privacy in

the house of someone else. Carter, 525 U.S. at 89, 119 S. Ct. at 473,

142 L. Ed. 2d at 379; see also State v. Ortiz, 618 N.W.2d 556, 561 (Iowa

2000) (distinguishing a social guest from one who is permitted on the

premises for the commercial purpose of engaging in commercial drug

transactions).

       The     determination   of whether   a person has a            reasonable

expectation of privacy with respect to a particular time and place “is

made on a case-by-case basis, considering the unique facts of each

particular situation.” State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998).

The record in this case is inadequate in several particulars to determine

whether Carroll can establish such an expectation during the gathering

in Wulf’s barn.      The relationship between Wulf and Carroll, and the

frequency with which Carroll had previously, if ever, visited Wulf’s

property is not disclosed. See Carter, 525 U.S. at 90, 119 S. Ct. at 473,

142 L. Ed. 2d at 380 (discussing whether a social relationship existed
                                          13

between the defendant and the premises searched). We are also unable

to discern from the record how long Carroll had been at the Wulf

premises before the search occurred. See id. at 91, 119 S. Ct. at 474,

142 L. Ed. 2d at 381 (noting the relatively short time defendants were

present on the searched premises as a factor in deciding whether a

reasonable expectation of privacy existed).            The record also does not

sufficiently disclose the nature of the place searched.               Although the

police report indicates a couch and bar were present on the top floor of

the structure suggesting the presence of dwelling-like features, we believe

the record is nonetheless inadequate to reveal the characteristics of the

barn and its relationship, if any, to the Wulf dwelling. Furthermore, we

believe a principled evaluation of the reasonableness of Carroll’s claimed

expectation of privacy should be based on an understanding of the

number of people invited to the party and the number of guests who were

present at the time of the search. The record does not reveal whether the

party was open to the public or limited to a circumscribed guest list. 6

       The record is also inadequate in at least one additional important

respect.   According to the police report, the investigating officers were

unable by knocking on the exterior of the barn to rouse the attention of
anyone inside.      Soon thereafter the officers encountered a male and

female exiting a garage on the Wulf premises. 7 The report further asserts

that when the officers inquired of the couple as to what was going on

inside the barn, they did not directly respond, but instead invited the

officers to “follow them to the party.” The record does not disclose the

       6The police report asserts the informant who reported the party to law

enforcement officials claimed he had received five telephone calls from people inviting
him to Wulf’s party.

      7The record is unclear whether the “garage” was part of the barn structure or

connected to the Wulf residence that was located nearby on the same premises.
                                    14

identity of the couple, nor does it offer evidence as to whether the couple

had authority to invite the officers into the barn without a warrant.

      III.   Conclusion.

      We affirm Carroll’s conviction. Because the record is inadequate to

decide the claim of ineffective assistance of counsel, we preserve it for

possible postconviction proceedings.

      DECISION OF THE COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Baker, J., who takes no part.
