                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1575
                            Filed September 10, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TY ANDRE PATRICK,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrum

(suppression hearing) and Lawrence P. McLellan (trial and sentencing), Judges.



      Ty Patrick appeals the district court’s denial of his motion to suppress and

sentence. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, John P. Sarcone, County Attorney, and Joseph D. Crisp, Assistant

County Attorney, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, J.

       Ty Patrick appeals the adverse ruling on his motion to suppress and the

judgment and sentence entered for possession of marijuana, third offense, in

violation of Iowa Code section 124.401(5) (2013), enhanced as a habitual

offender pursuant to Iowa Code section 902.8. Patrick claims the stop of the car,

in which he was a passenger, was unconstitutional and the evidence obtained

from stop should have been suppressed. He also claims his trial counsel was

ineffective for failing to object to an inadequate waiver of a jury trial for penalty

enhancements. We find the district court properly denied Patrick’s motion to

suppress.    We decline to address Patrick’s ineffective-assistance-of-counsel

claim, as the record is insufficient for us to address this issue. This issue is

preserved for possible postconviction-relief proceedings.

I.     BACKGROUND FACTS AND PROCEEDINGS

       In May 2013, Des Moines police officers stopped a car because it had a

cracked left rear taillight and was “showing white.” As the officer approached the

vehicle, he noticed a cellophane wrapper containing an unknown substance near

Patrick, who was a passenger sitting in the backseat of the vehicle.            After

speaking with the driver, the officer asked the passengers (including Patrick) for

identification. The officer noticed Patrick attempting to conceal the cellophane

wrapper and ordered Patrick to get out of the car. Upon searching Patrick, the

officer found a small plastic bag of marijuana and a glass pipe. The officer

subsequently learned Patrick was wanted for a parole violation.
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       On June 11, Patrick was charged with possession of marijuana.           The

State also filed an amended trial information alleging Patrick had two previous

convictions under Iowa Code chapter 124, which enhanced a serious

misdemeanor to a class “D” felony. The State also alleged Patrick was a habitual

offender, which further enhanced the penalty to an indeterminate term of

incarceration of fifteen years with a three-year mandatory minimum sentence.

       In August, Patrick filed a motion to suppress claiming the officer’s stop of

the car violated the United States and Iowa Constitutions. After a hearing, the

court denied the motion.

       A bench trial on the minutes was conducted in September and Patrick was

found guilty.     The court sentenced Patrick to an indeterminate term of

incarceration not to exceed fifteen years.

       Patrick now appeals.

II.    STANDARD OF REVIEW

       Constitutional challenges are reviewed de novo.        State v. Kern, 831

N.W.2d 149, 164 (Iowa 2013). We independently evaluate the totality of the

circumstances based upon the entire record. Id. Deference is given to findings

of fact made by the district court, but we are not bound by them. State v. Turner,

630 N.W.2d 601, 606 (Iowa 2001).

III.   DISCUSSION

       A.       Suppression

       Patrick claims the district court should have suppressed the evidence

found as a result of the search of the car in which he was a passenger because
                                          4



the stop was unconstitutional. Specifically, Patrick claims the car’s taillight was

not cracked (the only reason given by the officer for pulling over the car) and

therefore the evidence should be suppressed.

       The Fourth Amendment of the United States Constitution and article I,

section 8 of the Iowa Constitution prohibit unreasonable search and seizures.

“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ . . .

even though the purpose of the stop is limited and the resulting detention quite

brief.” Delaware v. Prous, 440 U.S. 648, 653 (1979). Stopping a vehicle and

detaining the occupant is not an unreasonable seizure when the officer has either

(1) probable cause due to observation of a traffic violation or (2) reasonable

suspicion, supported by articulable facts, a criminal act has occurred or is

occurring. State v. Tague, 676 N.W.2d 197, 201–04 (Iowa 2004). If we find the

officer had reasonable suspicion to initiate the stop, we will affirm the ruling of the

district court.

       Upon our de novo review of the record, we find the taillight was cracked

thereby showing white light. While the car taillight color was obscured by the

light from the officer’s car during the first part of the stop, the taillight crack is

visible when the car is loaded onto the tow truck.          We find the officer had

probable cause to stop the vehicle and affirm the district court’s denial of

Patrick’s motion to suppress. We affirm Patrick’s conviction.

       B.         Ineffective Assistance of Counsel

       Patrick claims his trial counsel was ineffective for failing to object to an

inadequate waiver of a jury trial on the penalty enhancements, as required by
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Iowa Rule of Criminal Procedure 2.19(9). In order to prevail, Patrick must show

his counsel (1) failed to perform an essential duty, and (2) prejudice resulted.

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). “Only in rare cases will the trial record

alone be sufficient to resolve the claim on direct appeal.” State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006).         Ordinarily we reserve claims of ineffective

assistance of counsel raised on direct appeal for postconviction proceedings to

allow full development of the facts surrounding counsel’s conduct. State v. Atley,

564 N.W.2d 817, 833 (Iowa 1997).          As discussed below, the record is not

sufficiently developed to present the issue in this case, and this issue is best

suited for a possible postconviction-relief hearing.

       Since Patrick faced a possession charge that imposed an enhanced

penalty for prior convictions and habitual offender status, the State was required

to conduct a two-stage trial. See Iowa R. Crim. P. 2.19(9); see also State v.

Kukowski, 704 N.W.2d 687, 691 (Iowa 2005). Once the jury found Patrick guilty

of the possession charge, Patrick “shall have the opportunity in open court to

affirm or deny that [he] is the person previously convicted.” Iowa R. Crim. P.

2.19(9).   If Patrick denied the previous convictions “then sentence shall be

postponed for such time as to permit a trial before a jury on the issue of the

offender’s identity with the person previously convicted.”      Id.   In State v.

Kukowski our supreme court noted,
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       An affirmative response by the defendant under the rule, however,
       does not necessarily serve as an admission to support the
       imposition of an enhanced penalty as a multiple offender. The
       court has a duty to conduct a further inquiry, similar to the colloquy
       required under rule 2.8(2), prior to sentencing to ensure that the
       affirmation is voluntary and intelligent.

704 N.W.2d at 692; see also State v. Johnson, 770 N.W.2d 814, 825–26 (Iowa

2009) (finding rule 2.19(9) applicable in both bench and jury trials); State v. Doty,

No. 14-0249, 2014 WL 5249761 (Iowa Ct. App. Oct. 14, 2014) (finding appellant

not prejudiced by lack of rule 2.19(9) colloquy because appellant admitted to

prior convictions in plea agreement); State v. Davenport, No. 09-1699, 2010 WL

3503969 (Iowa Ct. App. Sept. 9. 2010) (finding where rule 2.19(9) colloquy was

not conducted by court for sentencing enhancements, record was inadequate to

address prejudice prong of ineffective-assistance claim, but claim was preserved

for future postconviction-relief proceeding).

       Patrick filed two jury trial waivers; neither addressed Patrick’s right to a

separate trial on the enhancements or made any mention of the prior convictions.

The district court questioned Patrick on his jury trial waiver but did specifically

address his right to a jury trial on the enhancements. Upon our review of the

record, it is unclear if Patrick understood the implications of the sentencing

enhancements. Therefore, we are unable to make a finding on whether Patrick’s

trial counsel breached an essential duty in failing to object to the court’s

omission.

       We affirm Patrick’s conviction but preserve Patrick’s ineffective-

assistance-of-counsel claim for possible postconviction-relief proceedings. See

State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (“Postconviction proceedings
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allow an adequate record to be developed and allow the attorney charged with

providing ineffective assistance an opportunity to respond to the defendant’s

claims.”).

       AFFIRMED.
