Opinion
No. 3-838 / 02-1913.
Filed December 10, 2003.
Appeal from the Iowa District Court for Woodbury County, Gary Wenell, Judge.
Sergio Arturo Zermeno-Luna appeals his convictions for possession of a controlled substance with intent to deliver and for failure to affix a drug-tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Thomas Mullin, County Attorney, and Bridget Barnes, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Sergio Arturo Zermeno-Luna appeals his convictions for possession of more than five grams of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7) (2001) and for failure to affix a drug-tax stamp, in violation of section 453B.12. He contends his trial attorney provided ineffective assistance of counsel by failing to adequately explain the penalties for the possession of methamphetamine with intent to deliver charge. He contends his decision to reject a plea agreement and proceed to trial was not fully informed because he was not aware of the penalties he faced.
In order to show ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudiced resulted therefrom. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). We generally preserve ineffective assistance claims for postconviction proceedings to permit development of the record and to give counsel an opportunity to respond to defendant's claims. State v. Ruesga, 619 N.W.2d 377, 384 (Iowa 2000). Only in rare cases will the trial record alone be sufficient to resolve the claim. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999).
The record in this case is inadequate for us to address defendant's claims on direct appeal. Accordingly, we preserve Zermeno-Luna's claims of ineffective assistance of counsel for possible postconviction proceedings.