                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1323
                               Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LISA ELIZABETH EVJENTH,
      Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Nancy A.

Baumgartner (motion to suppress), Lars G. Anderson (sentencing), and Carl D.

Baker (probation revocation), Judges.



       Lisa Evjenth appeals from the revocation of her deferred judgment

following her plea of guilty to possession of heroin with intent to deliver, claiming

trial counsel was ineffective in failing to timely file a motion to suppress.

AFFIRMED.




       Christopher J. Foster of Foster Law Office, Iowa City, for appellant.

       Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.

       Lisa Evjenth appeals from the revocation of her deferred judgment

following her plea of guilty to possession of heroin with intent to deliver, claiming

trial counsel was ineffective in failing to timely file a motion to suppress. We

preserve the ineffectiveness claim and affirm the conviction.

       On November 27, 2012, Detective Jeremy Blomgren received information

from Iowa City Officer Scott Gaarde that an anonymous source, who stated she

was a friend of Evjenth, reported Evjenth was using and selling heroin, “sleeping

with her dealer,” and helping him sell heroin from her residence located at

apartment 2805 of a certain address in Iowa City.               Detective Blomgren

recognized Evjenth’s name as having repeatedly come up on phone toll records

during an ongoing federal heroin investigation.           Through department of

transportation records, Detective Blomgren confirmed Evjenth lived at the

address given by the anonymous source. The officer also checked with the Iowa

City police department for calls for service at the named apartment—there had

been “multiple calls,” one of the most recent occurred on November 30, 2012,

and showed Evjenth involved in a domestic dispute with Ollie Mitchell, whose

address was the same as Evjenth’s. Detective Blomgren ran a criminal history

check of Mitchell, which showed at least twenty-five prior arrests in Iowa,

including several prior drug arrests.

       After confirming Evjenth’s residence and criminal history, Detective

Blomgren asked Officer Chad Bender of Coralville and his canine to conduct a

“free air sniff” of Evjenth’s apartment door, which is on the ground level of a “two

level multi-residential building.” The December 4, 2012, canine sniff resulted in a
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positive hit at Evjenth’s doorway. On December 5, Detective Blomgren applied

for a search warrant. A photo attached to the warrant application shows the

apartment building with all exterior doorways open to an outside common

walkway. A warrant was issued that date to be executed “immediately.”

       Detective Blomgren and other members of the Johnson County Multi-

Agency Drug Task Force (JCDTF) executed the warrant on December 12, 2012.

During the search of Evjenth’s apartment, the JCDTF found and seized

numerous small baggies of heroin, burnt spoons, and other drug paraphernalia.

       Acknowledging the motion to suppress was filed beyond the time limit,1

defense counsel sought to suppress the findings of the search warrant,

contending the warrant was not supported by probable cause, and even if the

warrant was valid at the time of signing on December 5, it was no longer valid

when executed on December 12. Supplemental filings raised additional issues

and provided additional authority.

       After a hearing, the district court denied the motion as untimely. Upon a

motion to reconsider, the court noted: “[I]t is unlikely, on the issues raised by the

defendant, that her motion to suppress would be granted. I decline to reconsider

my ruling denying Defendant’s motion to suppress.”

       On July 31, 2014, Evjenth entered into a plea agreement in which she

would plead guilty to possession of heroin with intent to deliver, judgment would

be deferred, and a second count (operating a drug house) would be dismissed.

On December 2, 2014, the court deferred judgment and placed Evjenth on

1
  Counsel wrote, “The reason is that defense counsel has only just realized the issues
raised in this motion.” Counsel did not assert good cause existed for the late filing, only
that extending the deadline would not prejudice the State.
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probation for three years. Evjenth’s probation was revoked on July 31, 2015, and

she now appeals.

       Evjenth claims her trial counsel was constitutionally defective in failing to

timely file the motion to suppress.

       “The right to assistance of counsel under the Sixth Amendment to the

United States Constitution and article I, section 10 of the Iowa Constitution is the

right to ‘effective’ assistance of counsel.” State v. Fountain, 786 N.W.2d 260,

265 (Iowa 2010). We review claims of ineffective assistance of counsel de novo.

State v. Ondayog, 722 N.W.2d 778, 783 (Iowa 2006). “To establish a claim of

ineffective assistance of counsel, the defendant must prove by a preponderance

of the evidence: (1) that trial counsel failed to perform an essential duty, and (2)

that prejudice resulted from this failure.” Fountain, 786 N.W.2d at 265-66. In

order to be successful, the defendant must prove both elements.            State v.

Graves, 668 N.W.2d 860, 869 (Iowa 2003).

       Ineffective-assistance claims are rarely addressed on direct appeal.

Ondayog, 722 N.W.2d at 786.           “Generally, ineffective-assistance claims are

preserved for postconviction relief proceedings to afford the defendant an

evidentiary hearing and thereby permit the development of a more complete

record.” State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). Resolution of a

claim on direct appeal is only proper when the record is adequate. State v. Clay,

824 N.W.2d 488, 494 (Iowa 2012).

       We find the record here inadequate to address Evjenth’s ineffectiveness

claim. The record does not indicate why Evjenth entered a guilty plea, what

advice counsel may have provided, and why counsel “just realized” the need to
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file a motion to suppress. We also lack a record of why the warrant was not

executed for seven days, and we lack a ruling on the merits of the motion to

suppress if Evjenth’s motion would have been heard rather than dismissed as

untimely. Such a ruling could address whether the delayed search remained

valid. See State v. Trudo, 253 N.W.2d 101, 105-06 (Iowa 1977). In the guilty-

plea context, the issue is typically whether the defendant would not have pled

guilty and would instead have proceeded to trial. State v. Carroll, 767 N.W.2d

638, 644 (Iowa 2009).      Thus, defendant’s ineffective-assistance claim is

preserved for postconviction proceedings to enable a complete record to be

developed and afford trial counsel an opportunity to respond. See Graves, 668

N.W.2d at 870.

      AFFIRMED.
