                   IN THE COURT OF APPEALS OF IOWA

                                      No. 18-1381
                                  Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RANDALL LEE BROOKS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Randy V. Hefner

(trial and post-trial motions), Judge, and Kevin Parker (sentencing), District

Associate Judge.



      Randall Lee Brooks appeals his conviction for driving while barred as a

habitual offender. AFFIRMED.



      S.P. DeVolder of The DeVolder Law Firm, P.L.L.C., Norwalk, and Trever

Hook of Kutmus, Pennington & Hook, West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                         2


DOYLE, Judge.

      The Iowa Department of Transportation (DOT) mailed Randall Lee Brooks

an “Official Notice” dated May 22, 2013, stating:

            You are hereby notified that effective 04-08-14 your privileges
      to operate motor vehicles are barred under the provisions of
      Section(s) 321.560 of the Code of Iowa THROUGH 04-06-18.

             This action is being taken due to the records of the
      Department indicate you are a HABITUAL OFFENDER of the traffic
      laws as defined by Iowa Code Section 321.555. Violations: Driving
      While Suspended, Denied, Cancelled, Revoked on 02-05-2011,
      Driving While Barred on 06-10-2011, Driving While Barred on 12-30-
      2012.

             Surrender your Iowa driver’s license to the address above.

          YOU MAY BE PROSECUTED                     FOR     FAILURE     TO
      SURRENDER YOUR LICENSE.

             Iowa law provides you are entitled to an appeal of this action.
      If you choose to request an appeal, you must submit a written
      request on or before 06-16-13. Your request must include your full
      name, driver’s license number, current address, and telephone
      number and be sent or delivered to the address above. A request
      for appeal has been included on this form.

             ....

             WARNING: Effective 04-08-14 you are not entitled to operate
      any motor vehicle in this state until you have received an official
      notice from this department terminating this action.

Brooks did not request a hearing. After Brooks was stopped for speeding on May

16, 2017, the State charged him with driving while barred as a habitual offender.

A jury found Brooks guilty as charged.

      Brooks’s primary argument on appeal concerns the district court’s refusal

to allow evidence concerning an alleged error in Brooks’s official driving record.

Brooks claimed that his driving record erroneously included a December 27, 2010
                                             3


citation for driving while denied that had been issued to someone with a similar

name.1    In Brooks’s view, this error set into motion a series of events2 that

eventually led the DOT to bar his license as a habitual offender.3 In other words,

if not for the error, his license would not have been barred at the time he was

stopped in 2017. Following an offer of proof, the trial court ruled that Brooks could

not collaterally attack the DOT action barring his license as a habitual offender

and, therefore, the evidence was inadmissible.

       We review the district court’s evidentiary rulings for an abuse of discretion.

See State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015). “An abuse of discretion

occurs when the trial court exercises its discretion ‘on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.’” Id. (citation omitted).

Erroneous application of the law constitutes an abuse of discretion. See id.

       The proper method of challenging a DOT habitual-offender adjudication is

to exhaust all agency remedies and then file a petition for judicial review with the

district court. See State v. Clark, 608 N.W.2d 5, 8 (Iowa 2000). If a motorist fails

to do so, the DOT’s adjudication “is entitled to res judicata effect as if it were a

judgment of a court.” Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 517–18 (Iowa

1998). A motorist whose license the DOT has barred cannot collaterally attack the



1
   The name listed on the driving-while-denied citation is Polk Lee Brooks rather than
Randall Lee Brooks, though the citation includes Brooks’s driver license number.
2
  Brooks claims that because the 2010 citation was never issued to him, he never paid the
fine associated with it. His failure to pay that fine led to the suspension of his license,
which in turn led to a February 2011 citation for driving while suspended, which then led
the DOT to bar his license from April 2011 until April 2014. During that period, Brooks
received two citations for driving while barred, which caused the DOT to bar Brooks’s
license as a habitual offender from April 2014 through April 2018.
3
  Despite Brooks’s claim that barring of his license as a habitual offender is a consequence
of this error, no such evidence was presented during the offer of proof.
                                          4

DOT’s action in a criminal prosecution for driving while barred. See State v. Clark,

608 N.W.2d 5, 8-9 (Iowa 2000).

       The district court did not abuse its discretion in refusing to allow Brooks to

present evidence challenging the legitimacy of the DOT action barring his license

as a habitual offender. There is no question that Brooks received a notice of the

DOT action to bar his license from April 2014 to April 2018. Brooks did not request

a hearing or otherwise file an agency appeal. The question of whether his license

was barred at the time of his 2017 citation for driving while barred is not subject to

collateral attack.

       Brooks claims he is entitled to attack the 2010 citation based on the DOT’s

failure to provide him with proper notice. See State v. Green, 722 N.W.2d 650,

652 (Iowa 2006) (holding the State’s failure to show the DOT mailed the defendant

notice regarding the suspension of his driver license precluded a conviction for

driving under suspension). Perhaps his argument would have merit if this appeal

concerned the 2011 conviction for driving under suspension, but that ship has

sailed. More than six years passed between the suspension of Brooks’s license

for nonpayment of the 2010 citation and his arrest for driving while barred as a

habitual offender, during which time he has incurred multiple citations and twice

had his license barred.     Now, faced with the consequences following these

intervening events, Brooks seeks to attack the legitimacy of the 2010 citation.

Brooks cannot object to the fall of the last domino by now claiming the first domino

fell in error. The time to seek redress has long since passed. Because the

evidence Brooks sought to introduce was for the purpose of collaterally attacking

the DOT action and was therefore inadmissible, we affirm.
                                            5


       Brooks also contends the trial court abused its discretion in denying his

request for a continuance to allow him to pursue administrative remedies. Such

motions “shall not be granted except upon a showing of good and compelling

cause.” Iowa R. Crim. P. 2.9(2).

       Otherwise, the date assigned for trial is considered fixed. The
       decision to grant or deny a motion for continuance rests in the sound
       discretion of the trial judge. It will not be disturbed on appeal unless
       an injustice has resulted. The standard recognizes the interest of
       both the state and the defendant in a speedy and fair trial.

State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (citations omitted). Because the

time for administrative remedies had passed, Brooks failed to establish a good and

compelling cause for the continuance. The district court acted within its discretion

in refusing to continue the trial.

       Brooks next asserts that his right to be present at trial was violated. The

record shows that when trial reconvened at 1:15 p.m. following a recess, Brooks

was not present. Brooks’s counsel went on to make the offer of proof. Brooks

returned to the courtroom sometime thereafter.4 Later, his counsel explained “for

[his] client’s benefit”: “We made what’s called an offer of proof when Mr. Brooks

was a little bit tardy. We started right on time, and the DOT officer was called about

the Defendant’s Exhibit A, the 2010 ticket for which there’s a case of mistaken

identity.” At no time did Brooks or his counsel object to continuing the trial in his

absence. As has often been recognized,

       Issues not raised before the district court, including constitutional
       issues, cannot be raised for the first time on appeal. A party
       challenging a statute on constitutional grounds must do so at the

4
  Although there is no indication as to exactly what time Brooks reentered the courtroom,
the record shows he entered just after completion of the offer of proof and before the jury
entered the courtroom at 1:34 p.m.
                                           6


        earliest available time in the progress of the case. A failure to make
        the challenge in a timely manner leaves nothing for the appellate
        courts to review.

State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). Because the claim was not

raised to the trial court, error was not preserved.

        In the alternative, Brooks alleges his trial counsel was ineffective “in failing

to formally raise Brooks’ absence to the district court, move to briefly delay the

proceedings so that Brooks’ whereabouts could be determined, and to make a

record on involuntariness after Brooks returned to the courtroom.” In order to

succeed on a claim of ineffective assistance, a defendant must prove trial counsel

failed to perform a duty and prejudice resulted. See State v. Graves, 668 N.W.2d

860, 869 (Iowa 2003). Although we will address a claim of ineffective assistance

of counsel on direct appeal when the record is sufficient to decide the issue, see

State v. Ross, 845 N.W.2d 692, 697 (Iowa 2014), we generally preserve such

claims for postconviction-relief proceedings where a proper record can be

developed, see State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). Because the record

here is insufficient, we preserve this claim for a postconviction proceeding. See

State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) (“If the development of the

ineffective-assistance claim in the appellate brief was insufficient to allow its

consideration, the court of appeals should not consider the claim, but it should not

outright reject it.”).

        Finding no error on the claims properly presented on appeal, we reject

Brooks’s claim that he should be granted a new trial based on the cumulative effect

of the errors alleged. See State v. Burkett, 357 N.W.2d 632, 638 (Iowa 1984).

        AFFIRMED.
