Opinion
No. 2-957 / 02-0482
Filed January 15, 2003
Appeal from the Iowa District Court for Clinton County, David H. Sivright, Jr., Judge.
Defendant appeals guilty plea and sentence, claiming ineffective assistance of trial counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Michael L. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Peggy Benson appeals following her guilty plea to and judgment and sentence for delivery of methamphetamine, in violation of Iowa Code section 124.401(1)(c)(6) (1993). Benson argues counsel was ineffective for failing to challenge the expiration of the statute of limitations. To succeed on an adequately preserved ineffective assistance claim, she must demonstrate counsel's performance fell below the normal range of competency and the inadequate performance prejudiced her defense. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Our review is de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
While Benson's initial appeal brief claims counsel failed to forward a valid defense and allowed her to plead guilty despite the charge being time-barred, it does not specifically claim she was unaware the statue of limitations had expired or that counsel's failure to raise the issue impacted the knowing and voluntary nature of her plea. Such a limited claim normally fails, as a guilty plea conducted in accord with Iowa Rule of Criminal Procedure 2.8(2)( b) waives any defense or objection that is not intrinsic to the plea itself, including ineffective assistance claims that do not bear on the knowing and voluntary nature of the plea. State v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000); Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000). See also State v. Burgess, 639 N.W.2d 564, 567 (Iowa 2001) (finding plea waived right to challenge a charge based on statute of limitations).
In her reply brief, Benson does contend counsel was ineffective for failing to inform her the statute of limitations had expired, rendering her plea less than fully informed. Although such claim is not subject to the general waiver rule, id., we typically do not address on appeal claims raised for the first time in a reply brief. Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996). When Benson's briefs are read in tandem, however, we believe her initial appeal brief can be construed to encompass a claim that counsel's failure to raise the statute of limitations issue affected the knowing nature of her plea.
Benson's reply brief asserts that "[i]t is beyond the pale to believe this woman would pled [sic] guilty to a charge that would keep her incarcerated in Iowa, . . . knowing that she didn't have to plead at all. Clearly, she did not enter this plea knowing the full circumstances." Her reply brief also points out counsel's on-the-record statement that he did not know of any defenses to the charge beyond a general denial.
We are nevertheless unable to address the issue on direct appeal, as the record before us does not demonstrate whether counsel informed Benson of the potential statute of limitation defense. We therefore find the issue should be preserved for possible postconviction proceedings. See State v. Mulvany, 603 N.W.2d 630, 633 (Iowa Ct.App. 1999) (noting that we depart from general preference to resolve ineffective assistance of counsel issues in postconviction proceedings, only where the record on direct appeal is sufficient to evaluate the merits of defendant's claim).
AFFIRMED.