Opinion
No. 2-997 / 02-0343
Filed March 26, 2003
Appeal from the Iowa District Court for Polk County, Richard G. Blane, II, Judge.
The defendant appeals a judgment and sentence for OWI, second offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Daniel Bender appeals a judgment and sentence for operating a motor vehicle while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001). He contends trial counsel was ineffective in failing to:
(a) object to evidence regarding drug dealing,
(b) move for judgment of acquittal on the "under the influence" element, and
Bender raises this as an ineffective assistance of counsel claim because, although trial counsel moved for judgment of acquittal, she only challenged the "operating a motor vehicle" element.
(c) file a motion for new trial. He also claims the district court did not offer him the opportunity to speak in mitigation of his sentence.
We preserve all the ineffective assistance of counsel claims enumerated above for postconviction relief, to afford trial counsel an opportunity to address them. State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998).
The State points out that Bender's brief appears to contain additional ineffective assistance of counsel claims. The State asks us to reject these claims. We believe the additional claims cited by the State are in fact arguments in support of the three claims explicitly articulated by Bender. Therefore, we need not address or preserve them.
We reject the sentencing issue, as the record reflects the court asked Bender if he wished to say anything before sentence was pronounced. See Iowa R.Crim.P. 2.23(3)(d); State v. Ludley, 465 N.W.2d 912, 915 (Iowa Ct.App. 1990).