IN THE COURT OF APPEALS OF IOWA

No. 14-0052

Filed October 15, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

KENNETH D. AVERY IV,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge. 

A criminal defendant appeals his convictions for three counts of 

possession of a controlled substance, third offense, alleging ineffective 

assistance of counsel. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant 

Attorney General, John P. Sarcone, County Attorney, and Joseph Crisp, 

Assistant County Attorney, for appellee.

Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
2

TABOR, J.

Claims of ineffective assistance arising from counsel’s failure to file a 

motion to suppress can survive the entry of a guilty plea. State v. Carroll, 767 

N.W.2d 638, 644 (Iowa 2009). Kenneth Avery raises such a claim. He entered a 

plea agreement in which he admitted guilt for three felony drug offenses, and the 

State dismissed another felony and two simple misdemeanor charges.1 He now 

argues law enforcement illegally prolonged his detention following a traffic stop 

and a motion to suppress would have successfully excluded the evidence of his 

drug possession for two of three counts. He contends his attorney was 

constitutionally remiss in not moving to suppress and his guilty pleas were

unknowing and involuntary as a consequence of that ineffective assistance.

As the supreme court did in Carroll, we find it necessary to preserve 

Avery’s ineffective-assistance claim for postconviction-relief proceedings 

because the record in this direct appeal is inadequate to decide the merits of 

Avery’s suppression issue. See id. at 646.

I. Standard of Review and Principles of Ineffective Assistance

Because they flow from the Sixth Amendment, we review claims of 

ineffective assistance of counsel de novo. See State v. Finney, 834 N.W.2d 46,

49 (Iowa 2013). To prevail, Avery must show (1) counsel breached an essential 

duty and (2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 

 

1 Two of the counts arose from a traffic stop on February 13, 2013, and a third stemmed 

from an encounter with police on May 27, 2013. All three were enhanced to class “D” 

felonies because they were third offenses. See Iowa Code § 124.401(5) (2013). The 

court ran the February offenses consecutive to each other, but concurrent to the May 

offense, for an indeterminate term of ten years in prison.
3

687 (1984). In guilty plea situations, defendants must show but for counsel’s 

faulty advice, they would have elected to go to trial. State v. Straw, 709 N.W.2d 

128, 136 (Iowa 2006). 

Defendants are permitted to challenge the validity of their guilty pleas by 

proving the advice they received from counsel in connection with the plea was 

not within the range of competence demanded of criminal defense attorneys. 

Carroll, 767 N.W.2d at 642. If counsel does not properly evaluate facts giving 

rise to a constitutional claim that would have affected the decision to plead, the 

defendant may be able to meet this standard of proof. Id. The Carroll court 

explained: “Only through a case-by-case analysis will a court be able to 

determine whether counsel in a particular case breached a duty in advance of a 

guilty plea, and whether any such breach rendered the defendant’s plea 

unintelligent or involuntary.” Id. at 644.

The usual course is to preserve claims of ineffective assistance of counsel 

for postconviction relief proceedings. State v. Clay, 824 N.W.2d 488, 494 (Iowa 

2012). Those proceedings allow the parties to establish the pertinent facts and 

permit the accused attorney to respond to a defendant’s claims. See State v. 

Brubaker, 805 N.W.2d 164, 170 (Iowa 2011). We will resolve claims on direct 

appeal only when the record is adequate. Clay, 824 N.W.2d at 494.

II. Analysis of Suppression Claim

At this stage, our only available facts concerning the traffic stop and 

subsequent search come from the minutes of testimony. The minutes show that 

on February 13, 2013, Polk County Sheriff’s Deputy Doug Miller saw Avery’s car
4

exit the Motel 6 parking lot on N.E. Fourteenth Street in Des Moines with only 

one functioning headlight. Miller stopped the car, issued Avery a written warning, 

and told him he was free to leave. 

Before Avery left, Deputy Miller asked him a series of questions. The 

deputy asked Avery if he was still living in Baxter. Avery responded he was living 

at the Motel 6 on N.E. Fourteenth Street. Miller told Avery that particular Motel 6 

was “known for drug activity” and Miller noticed Avery had prior drug convictions. 

Miller asked Avery if he had anything illegal in the car; Avery said he did not. 

Miller then asked Avery for consent to search the vehicle; Avery declined. 

Deputy Mark Mohr had also arrived at the scene with his K-9 unit. 

According to the minutes, Miller asked Avery to “step out of the vehicle so that 

Deputy Mohr could have his K-9 check around the vehicle.” Before Deputy Miller 

placed Avery in the back seat of his patrol vehicle, Miller conducted “a search of 

the defendant’s person” for weapons. In doing so, Deputy Miller “felt a round 

tube with a bulb on the end, which felt like a methamphetamine pipe.” The 

deputy reached into Avery’s pocket and pulled out the pipe. The deputies 

arrested Avery and impounded his car. An inventory search revealed seventenths of a gram of methamphetamine and six-tenths of a gram of marijuana. 

Avery argues his case presents an issue under State v. Pals, 805 N.W.2d 

767, 772 (Iowa 2011), regarding the permissible scope of searches and seizures 

in the context of minor infractions. He believes the deputies seized him without 

probable cause after releasing him with an equipment citation. Avery contends 

the police violated his right against unreasonable search and seizure by 
5

“order[ing] him out of his car” and then conducting a search of his person. See

U.S. Const. amend. IV; Iowa Const. art. I, § 8. 

The State acknowledges, and we agree, the minutes raise a potential 

ground for a motion to suppress. But without testimony concerning the deputy’s 

request for Avery to step out of his vehicle and into the patrol car during the dog 

sniff, and whether Avery’s compliance with that request was voluntary or 

coerced, we are left to speculate concerning the interactions. See State v. Lane, 

726 N.W.2d 371, 378 (Iowa 2007) (explaining voluntariness is a question of fact 

to be determined from the totality of circumstances); see also Pals, 805 N.W.2d 

at 783 (noting police advisory that the defendant was free to leave “would serve 

to significantly neutralize the coercive setting”). The minutes do not disclose 

enough information to adequately decide the suppression issue.

The record also does not disclose what discussions trial counsel may 

have had with Avery concerning plea negotiations or the viability of filing a motion 

to suppress and possibly foregoing a favorable plea deal. Preservation of 

Avery’s claim will allow “full development of the facts surrounding counsel’s 

conduct.” See State v. Walker, 671 N.W.2d 30, 37 (Iowa Ct. App. 2003).

We affirm Avery’s convictions. Because the record is inadequate to 

decide his claim of ineffective assistance of counsel, we preserve it for possible 

postconviction-relief proceedings.

AFFIRMED.