IN THE COURT OF APPEALS OF IOWA
No. 16

- 1846 Filed May 17, 2017

STATE OF IOWA, Plaintiff

- Appellee,

vs. ADAM B. ARTERBURN , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Scott County, Cheryl Traum , District Associate Judge.

Adam Arterburn appeals following his plea of guilty to absence from a place he was required to be. CONVICTION AFFIRMED, SENTENCE VACATED , AND REMANDED WITH INSTRUCTIONS

.

Sharon D. Hallstoos of Hallstoos Law Office , Dubuque , for appellant. Thomas J. Miller, Attorney General, Louis S. Sloven , Assistant Attorney General, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.2

DANILSON, Chief Judge. Adam Arterburn appeals following judgment and sentence entered upon
his written plea of guilty to absence from custody, in violation of Iowa Code section 719.4(3) (2016).

“ We ordinarily review challenges to guilty pleas for correction of errors at
law. ” State v. Fisher

, 877 N.W.2d 676, 680 (Iowa 2016)

. On October 5, 2016, Arterburn entered a written guilty plea to one count of absence from custody . The written guilty p lea indicates, “ A plea agreement in
my case exists as evidenced by a memorandum o f plea agreement which I have signed. I understand the plea agreement is no t binding on the court. ” The written guilty plea also contained a discussion of penalties: 9. On a plea of guilty to:

. . . .

__ √ __ A serious misdemeanor, the Court can sentence me to jail for up to one year, and fine me between $315.00 and $1875.00, plus s urcharge and court costs. It also explained that to challenge the guilty plea a motion in a rrest of judgment must be filed and that failing to file a motion in arrest of judgment before sentencing would “preclude [his] right to assert any defects in this plea in any appeal.” He also signed an additional waiver stating: “I wish to be sentenced
t oday.” Defense counsel’s signature appears below the statement, “I have fully advised my client of the consequences of this document. My client’s decision to sign this document and waive the rights described above is knowing and voluntary.”3

That same date, October 5, 2016, t he district court accepted Arterburn’s written guilty plea, along with h is written waiver of a reported plea hearing. The sentencing order provides further:
The c ourt has reviewed the signed plea of guilty form and considered the statements of the d efendant. The c ourt finds that the d efendant understands the charge, the penal consequences and the constitutional rights being waived. Based on the statements of the d efendant, statements of the prosecutor, and the minutes of testimony accepted as true by the defendant and considered by the c ourt, the plea has a factual basis and is knowing, voluntary and intelligent.

. . . .

. . . The following sentence is based on all of the available sentencing consi derations set out in Iowa Code s ection 907.5. The c ourt finds the following factors the most significant to determine this particular sentence:

The plea a greement of the parties The nature and circumstances of the crime Maximum opport unity for rehabilitation and treatment in the community
The court s entenced Arterburn to 365 days in jail with all but 330 days suspended, to run consecutive to the sentence Arterburn was already serving
when he committed this absence

- from

- custody offens e. On appeal, Arterburn contends he was not adequately informed of the mandatory penalties for the offense to which he pled, the failure to file the plea
memorandum n egates any ability to find the plea was knowingly and voluntarily entered, and the court failed to state adequate reasons for imposing consecutive
sentences. Arterburn concedes that his written plea of guilty establishes that he was made aware of the time limit for filing a motion in arrest of judgment and did not timely file a motion in arre st of judgment. He is thus preclude d from challeng ing the adequacy of the plea proceedings on direct appeal. See Iowa R. Crim. P.4

2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude the defendant’s right to assert such challenge on appeal.”) ; State v. Straw , 709 N.W.2d 128, 132 (Iowa 2006) (“Straw’ s failure to move in arrest of judgment bars a direct appeal of his
conviction. ”)

. However, Arterburn contends plea couns el was ineffective, which except s him from normal error

- preservation rules. See Straw , 709 N.W.2d at 133. To establish his claim of ineffective assistance of counsel, Arterburn must demonstrate (1) his plea counsel failed to perform an essential duty, an d (2) this failure resulted in prejudice. S ee S trickland v. Washington , 466 U.S. 668, 687

- 88 (1984) . Only in “rare cases” will the record be adequate for the court to address the ineffectiveness claim on direct appeal. Straw , 709 N.W.2d at 133

. The re cord before us is not adequate to determine if Arterburn was adequately informed of the actual terms contained in the plea memorandum because the plea memorandum is not in this record

. Arterburn asserts that because the plea memorandum is not available we cannot presume the district court’s recitation of that the sentence was based

— at least in part

— upon the plea agreement. The State argues the proper remedy is to remand

. Because the plea memorandum is not in the record, we remand to the district court for further proceedings consistent with State v. Thacker , 862 N.W.2d 402, 410

- 11 (Iowa 2015):

On remand, if the district court determines it merely gave effect to the parties’ agreement and exercised no discretion in sentencing other than to accept the pl ea agreement as advanced by the parties, it should make the particulars of the plea agreement with respect to the sentence a part of the record. See [ State v.5

Matlock , 304 N.W.2d 226, 228 (Iowa 1981)] (“If the court has no discretion in sentencing, it sho uld so state.”). If, on the other hand, the parties did not come to an agreement with respect to the particulars of the sentence or the district court departed from any agreement the parties may have had, then the district court exercised discretion and, as a result, must make a statement on the record as to why it exercised its discretion in the way it did. On remand, there is no requirement the district court arrive at a different sentence, but only that it satisfy the requirements of Iowa Rule of Crimi nal Procedure 2.23(3)(d)

. We do not address any additional ineffectiveness claims here as they may be raised in a postconviction

- relief action. See Thacker , 862 N.W.2d at 411

. CONVICTION AFFIRMED, SENTENCE VACATED , AND CASE REMANDED WITH INSTRUCTIONS.