IN THE COURT OF APPEALS OF IOWA No. 19

- 1624 Filed August 4, 2021
STATE OF IOWA, Plaintiff

- Appellee,

vs. CORNELIUS GULLY , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Webster County, Gina Badding , Judge.

A defendant appeals his conviction for first

- degree burglary. AFFIRMED.

Martha J. Lucey , State Appellate Defender, and Maria Ruhtenberg , Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, and Kyle Hanson , Assistant Attorney General, for appellee.

Considered by Tabor, P.J. , Greer, J., and Scott, S.J. * *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2021 ).2

TABOR , Presiding Judge
. A jury convicted Cornelius Gully of first

- degree burglary. Now Gully contends counsel was ineffective in failing to object to a jury instruction. Bec ause

we lack the authority to decide ineffective

- assistance

- of

- counsel claims on direct appeal, we affirm. The State accused Gully of breaking into his ex - girlfriend’s home and assaulting her . At trial, the prosecutor played a phone call in which Gully asked the victim to drop the charges. Gully also s aid she “deserve d it. ” The court submitted a n instruction allowing the jury to consider Gully’s earlier statements “as if they had been made at this trial.” De fense counsel did not object. The jury found Gully guilty as charged. The court sentenced him in September 2019 . He timely appeal ed . The following June, the supreme court decided an almost identical jury instruction was “a misstatement of the law

. ” State v. Shorter

, 945 N.W.2d 1 , 1 1 (2020) (noting faulty instruction may not be

“ necessarily prejudicial in a given case ”). On appeal, Gully contends his trial counsel was constitutionally ineffective in failing to object to that instruction. The State concedes the instruction was wrong

. Yet the State argues we cannot add ress Gully’s claim. W e agree. A legislative amendment remove d our authority to decide ineffective

- assistance

- of

- counsel claims on di rect appeal. Iowa Code § 814.7 (2019). Instead, such claims “shall be determined by filing an application for postconviction relief pursuant to chapter 822.” Id

. Because of that amendment , Gully must wait for a postconviction

- relief court to hear his argument.3 Recognizing our limited authority, Gully contends section 814.7 violates his right to effective assistance of counsel and improperly restricts th e role and jurisdiction of Iowa appellate courts. He raises both a separation

- of

- powers argument and a jurisdictional argument. After briefing concluded in this case, the

su preme court rejected those arguments

. See State v. Tucker , 959 N.W.2d 140, 152

– 53 (Iowa 2021) ; State v. Jordan , 959 N.W.2d 395, 399 (Iowa 2021) (clarifying that amended section 814.7 “does not limit jurisdiction; it limits the authority of Iowa’s appellat e courts to resolve ineffective

- assist ance claims on direct appeal ”). The supreme court also re buffed a claim that section 814.7 violates the right to counsel. See State v. Treptow , 960 N.W.2d 98, 107

– 08 (Iowa 2021). So Gully’s constitutional arguments fail. As a final fallback, Gully contends that if we cannot decide his ineffective

- assistance claim on direct appeal , we should adopt and reverse on plain

error. See, e.g. , Fed. R. Crim. P. 52(b) (allowing an appellate court to consider “plain error th at affects substantial rights

. . . even though it was not brought to the [district] court’s attention”). But that argument has not gained traction with our supreme court either. See Treptow , 960 N.W.2d at 109 (collecting cases). Because our supreme c ourt has foreclosed each of Gully’s contentions, we affirm the conviction. Gully ’s ineffective

- assistance

- of

- counsel claim must await a postconviction

- relief action. AFFIRMED.