Opinion
No. 4-844 / 04-0187
Filed December 22, 2004
Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.
The defendant appeals from his convictions for second-degree sexual abuse and indecent contact with a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Jill R. Pitsenbarger, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
The defendant-appellant, Matthew McGuire, appeals from his convictions for second-degree sexual abuse and indecent contact with a child. He contends defense counsel was ineffective in failing to advise him the maximum punishment he faced if he rejected a plea agreement was life in prison without possibility of parole.
The defendant was charged with sexual abuse in the second degree and two counts of indecent contact with a child for incidents that occurred between the defendant and his daughter. He waived his right to a jury trial and submitted to a bench trial in which he was found guilty on all counts. Because he had a previous conviction for sexual abuse in the second degree with a child under twelve years old, the court sentenced him to a mandatory life sentence without the possibility of parole. See Iowa Code § 901A.2(5) (2001).
On appeal, the defendant contends defense counsel did not advise him he could face life imprisonment if he insisted on going to trial. Although not in the record on appeal, the defendant asserts there was a plea offer he rejected. The record before us contains an order resetting the trial date at the defendant's request "to allow continued negotiations between my counsel and the State." The failure of defense counsel to advise a defendant of applicable law can be deficient performance sufficient to satisfy the duty prong of an ineffective assistance claim. Wanatee v. Ault, 39 F. Supp. 2d 1164, 1172 (N.D. Iowa 1999). A defendant who rejects a plea bargain and goes to trial may still show prejudice "if the plea bargain would have resulted in a lesser sentence." Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995). The record is insufficient for us to address counsel's performance or any possible prejudice. We therefore affirm the defendant's convictions and preserve the defendant's ineffective-assistance claim for possible postconviction proceedings. See State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004) (setting forth the circumstances in which a claim of ineffective assistance of counsel may be addressed on direct appeal).