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The State charged Defendant by way of trial information of "assault domestic abuse causing bodily injury - enhanced" and "assault domestic abuse by use or display of a weapon." At the close of evidence during the trial, the State moved to amend the trial information to add a habitual offender enhancement. Defendant's trial counsel did not object to the amendment, and the district court granted the State's motion. Defendant was subsequently convicted Defendant of the underlying charge in count I. After Defendant was sentenced, Defendant appealed, asserting that his trial counsel was ineffective for failing to object to the State's motion to amend the trial information. The court of appeals denied relief. The Supreme Court affirmed Defendant's conviction and sentence but vacated the court of appeals decision to reject Defendant's ineffective-assistance claim, holding (1) under certain circumstances, an amendment to add a habitual offender enhancement to a trial information should not be allowed after the close of the evidence; but (2) the record in this case was insufficient to resolve Defendant's ineffective assistance of counsel claim.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF IOWA
Filed June 7, 2013
STATE OF IOWA,
ANTHONY GEORGE BROTHERN,
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Bradley J. Harris, Judge.
The defendant seeks further review of a court of appeals decision
rejecting his claim of ineffective assistance relating to a habitual offender
enhancement and affirming his conviction and sentence.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers,
Assistant Attorney General, Thomas J. Ferguson, County Attorney, and
Michelle M. Wagner, Assistant County Attorney, for appellee.
This case presents the question whether trial counsel’s failure to
object to an amendment of the trial information after the close of
evidence to add a habitual offender enhancement constitutes ineffective
assistance of counsel. We conclude there are circumstances when such
an amendment should not be allowed at that stage of the proceedings.
We also conclude the record before us is insufficient to resolve the
defendant’s ineffective-assistance claim.
Accordingly, we affirm the
defendant’s conviction and sentence, but vacate the court of appeals
decision that rejected his ineffective-assistance claim.
I. Facts and Procedural Background.
The record in this case indicates that Anthony Brothern beat his
live-in girlfriend in the face while she was lying in bed on the night of
June 21, 2009. According to the girlfriend, Brothern also held a knife to
her chest and put her in fear for her life. The next day, the girlfriend
photographed, and charges were filed against Brothern.
Count I of the original trial information charged Brothern with
“ASSAULT DOMESTIC ABUSE CAUSING BODILY INJURY—ENHANCED,”
in violation of Iowa Code section “708.2A(3)(b)—Class D Felony.”
appears the State intended to prosecute Brothern for felony assault
under the enhancement contained in section 708.2A(4), because the
information referred to count I as a “Class D Felony,” used the term
“ENHANCED,” and listed two prior assault domestic abuse convictions
consistent with that provision. See Iowa Code § 708.2A(4) (2009) (“On a
third or subsequent offense of domestic abuse assault, a person commits
a class ‘D’ felony.”).
However, the information only cited section
708.2A(3)(b), the unenhanced aggravated misdemeanor provision.
In count II, the State charged Brothern with “ASSAULT DOMESTIC
ABUSE BY USE OR DISPLAY OF A WEAPON,” in violation of section
708.2A(2)(c). That offense is an aggravated misdemeanor. Unlike count
I, this count did not refer to prior convictions or a potential
The case proceeded to trial. At the close of evidence, but prior to
closing arguments, the State moved to amend the trial information. The
amended information stated in both counts I and II that Brothern had
violated section 708.2(A)(4), the enhanced class “D” felony provision,
because of his prior domestic abuse assault convictions. In addition, the
amended count I sought a habitual offender enhancement based on
Brothern’s prior felony convictions in 1998 and 1996, respectively, for
extortion and prohibited acts. See Iowa Code § 902.8 (providing that a
habitual offender includes anyone convicted of a class “D” felony who has
been twice before convicted of a felony and that such persons shall not
be eligible for parole until they have served a minimum of three years).
Brothern’s trial counsel objected to the proposed amendment to
count II on due process grounds, but did not object to the amendment to
count I. The district court granted the State’s motion to amend the trial
Subsequently, the jury found Brothern guilty of the
underlying charge in count I and acquitted him on count II.
The court scheduled a separate trial on the count I enhancements.
Meanwhile, Brothern’s attorney was allowed to withdraw, and a new
attorney was appointed.
On the day of the separate trial, Brothern
decided to admit all four previous convictions and pled guilty to both the
section 708.2A(4) and the section 902.8 enhancements.
Following his guilty plea to the enhancements, and before his
sentencing hearing, Brothern filed a combined motion for a new trial and
motion in arrest of judgment.
In the combined motion, Brothern
asserted the jury verdict was contrary to law, arguing:
It is improper to bootstrap the charge of habitual offender
out of an enhancement on an underlying misdemeanor. It is
improper to render another enhancement on the back of an
He also asserted, generally, that his original trial counsel had been
At the hearing on his posttrial motions, Brothern’s new attorney
enhancement to count I that had not been objected to:
I believe that that violates [the] rule of criminal procedure
. . . regarding amendments to trial information, and so we
would ask that that count be stricken for that reason. And
certainly goes to fundamental fairness on the part of a
defendant. They may have proceeded differently with their
trial had that been filed before trial, and so it certainly
prejudices any defendant to allow a trial information to be
amended once they have already started a trial.
So for that reason we think that the enhancement for
the habitual should be dismissed, Your Honor.
Moments before, the prosecutor had said the following:
Looking at a little bit of the history through the plea
agreements, Your Honor, I just have what I jotted down in
my files. Looked like the state’s recommendation before trial
on this was for a five-year sentence, to run both counts I and
II concurrent, and the state would not file an habitual. I
believe that was turned down by Mr. Brothern. Your Honor,
we met in chambers before this case began, and I guess I
don’t recall if this was on the record or if the court does
recall it, as you were the trial judge, from my notes what I
have is that before jury selection started we offered Mr.
Brothern a 10-year sentence, to run counts I and II
consecutive. That was refused and jury selection began.
I guess the odd thing, Your Honor, we did file the
habitual. It was I believe during jury selection or during the
trial because Mr. Brothern did or wanted his trial. I do not
know of any discussions between himself and [his trial
attorney], but that was part, if he did not agree to the
agreements, we were going to file the habitual.
The defense did not dispute the prosecutor’s statement that Brothern’s
then-trial counsel had been told a habitual offender enhancement would
be filed if he turned down the plea agreement and went to trial.
The district court denied Brothern’s motions.
It treated the
allegedly improper enhancement as a potential ground for arresting the
judgment, but overruled that ground, observing:
There was later an enhancement to make this an habitual
offender. The law is well-settled that the enhancement to
make this an habitual offender simply changes the
sentencing and is not a wholly new or different offense, and
therefore the amendments were proper and were allowed.
The court sentenced Brothern to a term of incarceration not to exceed
fifteen years with the condition that he would not be eligible for parole
until he had served three years. See Iowa Code §§ 902.8, .9(3).
Brothern appealed, raising the single issue whether his trial
counsel had been ineffective for not objecting to the prosecution’s
attempt to add a habitual offender enhancement to count I at the close of
evidence. He urged the enhancement violated his rights to due process
under the United States and Iowa Constitutions.
“Consider the fact that Brothern could have chosen to plead guilty up
until the trial date to the offenses which he was facing. Had Brothern
pled guilty prior to trial, the State would have been estopped from filing
the enhanced charges.”
We transferred the case to the court of appeals, which found the
record sufficient to address Brothern’s ineffective-assistance claim and
rejected it. We then granted Brothern’s application for further review.
II. Error Preservation and Scope of Review.
In this case, the defendant did not object when the State moved to
amend count I of the trial information to add the habitual offender
Instead, he waited until after the jury returned its
verdicts on the underlying domestic abuse assault charges. Generally,
we require objections to be made “at the earliest opportunity” after the
grounds become apparent. State v. Johnson, 476 N.W.2d 330, 334 (Iowa
1991) (holding that an objection to the composition of the jury panel was
untimely when it was first raised in the defendant’s postverdict motion in
arrest of judgment or for new trial).
Defendant asserted ineffective assistance of counsel (both here and
below) in order to avoid potential error preservation problems. Ineffective
assistance of counsel is an exception to the traditional error preservation
rules. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). As we
read the defendant’s combined motion for new trial/motion in arrest of
judgment, it appears to urge that a constitutionally adequate counsel
would have objected to the amendment, and the objection would have
Iowa Code section 814.7 provides, “An ineffective assistance of
counsel claim in a criminal case shall be determined by filing an
application for postconviction relief pursuant to chapter 822, except as
otherwise provided in this section.” See Iowa Code § 814.7(1). It further
provides that a party “may, but is not required to, raise an ineffective
assistance claim on direct appeal from the criminal proceedings.”
§ 814.7(2). There is no provision for bringing an ineffective-assistanceof-counsel claim before the direct appeal, even when as here there has
been a substitution of counsel.
The State did not argue below that Brothern had waived any
objection to the amended information by not asserting it during trial. In
other words, the State did not contend that Brothern had to raise his
claim in the form of ineffective assistance.
Rather, the State simply
disagreed with Brothern on the merits; it maintained the amendment
was permissible and appropriate. The district court, therefore, did not
delve into ineffective assistance. Rather, it concluded on the merits that
the amendment “simply changes the sentencing and is not a wholly new
or different offense, and therefore . . . proper.”
We believe the appropriate course now is to apply our wellestablished procedural standards for ineffective-assistance claims that
are raised for the first time on appeal. As we note above, section 814.7
does not by its terms allow such claims to be raised before the direct
appeal. Also, as noted above, the district court did not treat Brothern’s
opposition to the amended count I below as an ineffective assistance
claim. Finally, Brothern has not framed the present appeal as an appeal
from the denial of his posttrial motions. Rather, both Brothern and the
State have briefed the present appeal as if the ineffective-assistance
claim were being raised for the first time.
Thus, we will decide whether the appellate record is adequate to
determine the claim. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa
2010). If not, the claim will be preserved for postconviction relief. Id.
We review claims of ineffective assistance de novo. See State v. Clark,
814 N.W.2d 551, 560 (Iowa 2012).
III. Legal Analysis.
Brothern argues his trial counsel was ineffective for failing to
register a timely objection to the State’s proposed amendment to count I
of the trial information.
To succeed on his ineffective-assistance-of-
counsel claim, Brothern “ ‘must establish counsel breached a duty and
prejudice resulted.’ ”
Lamasters v. State, 821 N.W.2d 856, 866 (Iowa
2012) (quoting Castro v. State, 795 N.W.2d 789, 794 (Iowa 2011)); see
also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674, 693 (1984). Brothern “must prove both elements by a
preponderance of the evidence.” State v. Straw, 709 N.W.2d 128, 133
To establish that his trial counsel breached a duty, Brothern has
to show the attorney’s performance fell below the standard of a
“reasonably competent attorney.” Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064, 80 L. Ed. 2d at 693 (citation and internal quotation marks
omitted). “We will not find counsel incompetent for failing to pursue a
meritless issue.” State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
To demonstrate prejudice for ineffective-assistance purposes, Brothern
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d
Pinpointing a breach of duty in this case requires consideration of
whether Brothern’s missing objection would have succeeded in the first
If it would not have been successful, Brothern’s trial counsel
could not have breached a duty. See Brubaker, 805 N.W.2d at 171.
We begin with the rule that governs here. Iowa Rule of Criminal
Procedure 2.4(8) states:
The court may, on motion of the state, either before or
during the trial, order the indictment amended so as to
correct errors or omissions in matters of form or substance.
Amendment is not allowed if substantial rights of the
defendant are prejudiced by the amendment, or if a wholly
new and different offense is charged.
Iowa R. Crim. P. 2.4(8).
“The term ‘indictment’ embraces the trial
information, and all provisions of law applying to prosecutions on
indictments apply also to informations . . . .” Iowa R. Crim. P. 2.5(5).
We have interpreted the phrase “during the trial” under Iowa Rule
of Criminal Procedure 2.4(8) to mean “the substantive trial when the
State seeks to enhance the defendant’s sentence based on a prior
conviction.” State v. Bruce, 795 N.W.2d 1, 5 (Iowa 2011). That is:
[W]e believe the phrase “during the trial” means the period of
time in which the trier of fact hears evidence and makes a
decision based on that evidence. Under this definition, once
the jury returns its verdict, the trial has concluded.
Id. at 3 (citation omitted). Here, the State sought the amendment after
the close of evidence but before the case went to the jury in the main
case. Thus, the State’s motion was made “before or during trial.”
Additionally, the amendment to count I did not charge a “wholly
new and different offense.” See Iowa R. Crim. P. 2.4(8). We have held in
a drug case that an amendment increasing the charge from a class “C”
felony (500 grams or less) to a class “B” felony (more than 500 grams) did
not implicate this language.
See State v. Maghee, 573 N.W.2d 1, 5–6
There we noted, “[T]he amendment charged the same
offense but with a larger amount of drugs involved resulting in a
potentially more severe sentence.” Id. at 5.
Even more directly on point, we have said that “Iowa Code section
902.8 (1983), a recidivist law, does not define a separate crime but
merely constitutes a predicate for enhanced punishment.”
Berney, 378 N.W.2d 915, 919 (Iowa 1985), overruled on other grounds by
Bruce, 795 N.W.2d 1. Here, the underlying offense of domestic abuse
assault remained the same; the State simply sought enhanced penalties
based on Brothern’s prior convictions. See Berney, 378 N.W.2d at 919;
cf. State v. Sharpe, 304 N.W.2d 220, 224–25 (Iowa 1981) (holding that
district court erroneously allowed amendment from second-degree to
first-degree murder because the latter is a “wholly new and different
“Amendment is not allowed if substantial rights of the defendant are
prejudiced by the amendment . . . .”
We believe this language, at a
minimum, requires that the amendment comply with applicable
constitutional guarantees. See State v. Jones, 817 N.W.2d 11, 17 (Iowa
2012) (noting that “we strive to avoid constitutional problems when we
interpret our rules”). Although Brothern primarily frames his argument
in terms of federal and state constitutional “due process,” he also refers
to his rights to be informed of the accusation against him as set forth in
the Sixth Amendment to the United States Constitution and article I,
section 10 of the Iowa Constitution. An amendment that did not meet
these constitutional standards would clearly prejudice substantial rights.
By the same token, an amendment that satisfies rule 2.4(8) should meet
constitutional notice requirements. Compare Maghee, 573 N.W.2d at 6
(focusing on defendant’s notice of the State’s intention to seek heavier
sentencing), with State v. Seering, 701 N.W.2d 655, 665–66 (Iowa 2005)
(“At the very least, procedural due process requires notice and
opportunity to be heard in a proceeding that is adequate to safeguard the
right for which the constitutional protection is invoked.” (Citations and
internal quotation marks omitted.)).
In the past, we have said “[a]n amendment prejudices the
substantial rights of the defendant if it creates such surprise that the
defendant would have to change trial strategy to meet the charge in the
Maghee, 573 N.W.2d at 6 (citing State v.
Fuhrmann, 257 N.W.2d 619, 624 (Iowa 1977)). As noted above, Maghee
involved the elevation on the morning of trial of a cocaine-possession
charge from a class “C” felony (500 grams or less of cocaine) to a class
“B” felony (more than 500 grams). Id. at 5. In finding no violation of the
rule, we highlighted several points.
For one thing, the minutes of
testimony referenced the amount of drugs involved.
This “put [the
defendant] on notice that the State considered his case to be a major
drug offense.” Id. at 6. Also, we concluded that Maghee “appeared ready
to defend against . . . the class ‘B’ felony amended charge.” Id. “We say
this because he did not ask for the traditionally appropriate remedy for a
defendant’s claim of surprise: a continuance.”
Id.; see also State v.
Schertz, 330 N.W.2d 1, 2 (Iowa 1983) (holding that the district court did
not abuse its discretion in denying a continuance where the State
amended the information to add an alternative means of committing the
crime of kidnapping).
An additional point we made was that “the amendment did not
change Maghee’s defense strategy.”
Maghee, 573 N.W.2d at 6.
defense turned on his assertion that he never possessed the cocaine,
whatever the amount.”
Id.; see also Fuhrmann, 257 N.W.2d at 624
(holding the state’s amendment did not prejudice the defendant’s
substantial rights because defendant did not “allege he would have
changed his trial preparation or strategy given earlier knowledge of the
We have not specifically considered whether the “prejudice”
component of rule 2.4(8) includes the notion that a defendant might have
made a different plea decision had he or she known of the amendment
earlier. It stands to reason, though, that “defense strategy” (one phrase
we used in Maghee, 573 N.W.2d at 6) could include a decision to plead
Several other courts have examined this issue under their own
rules or as a constitutional matter.
The Mississippi Supreme Court
recently decided two indictment-amendment cases under its own rule
governing amendments. See Gowdy v. State, 56 So. 3d 540, 545 (Miss.
2010) (noting that Mississippi’s rule states “[a]mendment shall be
allowed only if the defendant is afforded a fair opportunity to present a
defense and is not unfairly surprised” (citation omitted)). In Gowdy, the
defendant was indicted for felony driving under the influence as his
fourth such offense within a period of five years. Id. at 542. After the
jury reached a guilty verdict, and just before sentencing, the trial judge
permitted the State to amend the indictment, adding habitual offender
status.1 Id. The court sentenced Gowdy to life imprisonment without
The Mississippi Supreme Court interpreted the “unfair surprise”
restriction to mean “that the defendant must be afforded due process of
law and be given fair notice of ‘the nature and cause of the accusation.’ ”
Id. at 545 (citations omitted). The problem with the late amendment lay
in its effect on the defendant’s ability to enter an informed plea. Id. at
546. As the court explained:
[N]otice of the charge includes notice of the applicable
minimum and maximum penalties. . . . [B]efore a defendant
can plead guilty, the trial court has a duty to ensure that he
understands the nature and consequences of the plea, and
1Mississippi’s rule, unlike Iowa’s, does not limit amendments to “before or
during the trial.” Cf. Iowa R. Crim. P. 2.4(8), with Miss. Unif. Cir. & County Ct. R.
(URCCC) 7.09. Thus, the amendment in Gowdy was not invalid merely because it came
after the jury’s verdict.
the maximum and minimum penalties provided by law. The
rule should not be different for defendants who choose to
exercise their right to trial by jury.
Id. (internal citation and quotation marks omitted).
court found that the State should not have been allowed to amend the
Two years later, the Mississippi Supreme Court heard another case
in which the State had amended an indictment before trial to add an
allegation of habitual offender status. McCain v. State, 81 So. 3d 1055
(Miss. 2012). A majority of the court agreed that the amendment was
proper, because the defendant, unlike Gowdy, did have notice of the
State’s intention to seek habitual offender status.
Id. at 1061; id. at
1063 (Dickinson, P.J., concurring in result only). A key difference, the
court noted, was that “during [the] plea negotiations, the State disclosed
its intention to introduce McCain’s prior . . . convictions at trial.” Id. at
1061. Such notice, the plurality noted, negated the unfair surprise claim
under Mississippi’s rule on amending indictments. Id. McCain was able
to enter an intelligent plea, whereas Gowdy had not been.
In People v. Valladoli, 918 P.2d 999, 1010 (Cal. 1996), the
California Supreme Court considered an amendment similar to the one
here, albeit in the context of due process.
The court employed the
following standard: “Due process of law requires that an accused be
advised of the charges against him in order that he may have a
reasonable opportunity to prepare and present his defense and not be
taken by surprise by evidence offered at his trial.” Id. at 1009 (citation
and internal quotation marks omitted).
The court held there was no due process violation merely because
the statute allowed the state to add prior felony convictions to its charges
after a verdict but before sentencing. Id. Critically, in that case it was
clear the defendant knew the state’s intention at the outset. Id. at 1009–
10 (“[T]he record reveals defendant was not actually surprised by the new
charges.”). Of particular aid to the court was an on-record discussion by
the defendant’s attorney, stating, “I’m not saying I didn’t have notice or
anything of that nature . . . I would never try to mislead the court and
suggest that there was any surprise in this case.” Id. at 1010 (internal
quotation marks omitted).
Indeed, the court took care to note that
“nothing in this case suggests the prosecution intentionally held back the
prior felony conviction allegations to gain some tactical advantage, or
that the delay had a detrimental impact on defendant’s decision to accept
an offered plea.” Id. at 1010 (emphasis added).
The Supreme Court of Arizona, under the due process framework,
also focused on defendant’s knowledge of the State’s intentions prior to
State v. Noriega, 690 P.2d 775, 784 (Ariz. 1984) (finding no
“surprise or prejudice” in the State’s amendment of the indictment to cite
to the correct statutory provision authorizing an enhanced penalty,
because “[t]he prosecutor made two statements on the record before trial
that indicated his intent to seek the enhanced penalty” and that “both
attorneys proceeded to trial on this basis”), overruled on other grounds by
State v. Burge, 804 P.2d 754 (Ariz. 1990); see also Duke v. State, 587
S.W.2d 570, 571 (Ark. 1979) (rejecting the defendant’s argument that he
was prejudiced because he did not learn of an amendment to the
information alleging he was a habitual offender until after the jury had
been selected on the main case in part because the defendant had been
told during plea negotiations that habitual criminal charges would be
filed against him if he did not enter a plea of guilty); Luna v.
Commonwealth, 571 S.W.2d 88, 89 (Ky. Ct. App. 1977) (rejecting
defendant’s challenge to an indictment amendment adding habitual
offender status and finding his substantial rights were not prejudiced
because “the appellant turned down a one year [plea] offer from the
Commonwealth before trial”).
In a South Dakota Supreme Court case, the state originally filed an
indictment and a supplemental allegation that the defendant was a
habitual offender. State v. Alexander, 313 N.W.2d 33, 34 (S.D. 1981).
The state later amended its indictment, but inadvertently omitted a
supplemental allegation on the habitual offender status. Id. The court
held there was no error in sentencing the defendant as a habitual
At the time of the arraignment on the amended
indictment appellant was aware that the State claimed that
the supplemental information was still on file, and he was
fully advised by the court of the maximum possible
punishment thereunder. He indicated that he was aware of
and understood the same.
Alexander, 313 N.W.2d at 37. In other words, the defendant knew what
punishment the State sought by the time he entered his plea.
Consistent with these authorities, we hold that amending the
“substantial rights of the defendant”—if the defendant had no prior
notice of the State’s plan to amend and would have pled guilty had he or
she known of that plan before trial.
Our conclusion is based on
interpretation of rule 2.4(8), without reaching the question whether due
process or some other constitutional provision requires the same result.
At the same time, we decline to adopt the position, seemingly urged by
Brothern, that due process prohibits any amendment of the information
to add an enhancement once trial begins.
We turn now to whether Brothern’s trial counsel breached an
essential duty in failing to oppose an amendment that prejudiced
Brothern’s substantial rights.
Here, the record is clear that Brothern
had notice of the State’s intention to prosecute him under the felony
assault enhancement of section 708.2A(4).
The preamendment trial
information, although it cited the wrong code section, said “Class D
Felony” and used the term “ENHANCED.”
Following that, the
information enumerated Brothern’s two previous domestic abuse assault
convictions, which were necessary to convict him of the class “D” felony.
The State’s original minutes of testimony also revealed its intent to
prosecute Brothern for enhanced domestic abuse assault. The minutes
disclosed that the State planned to present testimony establishing
Brothern’s two domestic abuse assault convictions. In reality, the only
thing omitted from the first version of count I was a citation to the right
See State v. Brisco, 816 N.W.2d 415, 420–21 (Iowa Ct.
App. 2012) (holding that the district court should not have dismissed an
amended information for violation of the speedy indictment rule where
the amendment was needed only to correct a misstatement as to the type
of controlled substance and the applicable statutory subparagraph, and
the defendant was on notice as to the substance of the charge).
The habitual offender enhancement presents a somewhat different
issue. The original trial information did not mention Brothern’s extortion
and prohibited acts convictions, which were necessary to establish
habitual offender status. Nor did the original minutes of testimony refer
to those convictions.
(The State filed additional minutes after it was
allowed to amend the information.)
At the posttrial hearing, no one
contested the prosecutor’s statement that Brothern’s prior counsel had
been advised “we were going to file the habitual” if Brothern turned down
the State’s pretrial plea offer.
Yet Brothern’s prior counsel was not
present at the hearing to offer his version of events.
Brothern does not claim that the absence of habitual offender
allegations from the trial information affected his trial strategy in the
main case. In addition, Brothern had ample opportunity to prepare to
deal with those allegations before the subsequent trial on his habitual
Almost six weeks elapsed between the trial on the
assault domestic abuse charges and the scheduled trial on the
However, for the reasons previously stated, Brothern also had a
right rooted in rule 2.4(8) to know whether he was going to face a
habitual offender enhancement if he did not plead guilty and instead
went to trial.
The present record is insufficient for us to determine
whether Brothern had that notice.
All we have at this point is the
prosecutor’s professional statement to the court. The district court did
not consider that statement because, in that court’s view, it was
determinative that the enhancement did not involve “a wholly new or
different offense.” That construes rule 2.4(8) too narrowly, because the
rule imposes a separate requirement that the amendment not prejudice
substantial rights of the defendant.
Accordingly, we affirm Brothern’s conviction and sentence, but we
do so without foreclosing Brothern from filing an application for
postconviction relief alleging he received ineffective assistance of counsel
at trial when his attorney failed to object to the State’s motion to amend
count I to add the habitual offender enhancement. To succeed on such
an application, Brothern would have to show at a minimum that his
counsel had not received notice of the State’s intent to seek that
enhancement if he went to trial. Brothern would also have to show that
he would have pled guilty if notice had been provided.
As we have
already pointed out, the late amendment could not have affected
Brothern’s trial strategy, only his plea strategy, so there would be no
prejudice to Brothern if he would have gone to trial anyway.2
For the foregoing reasons, we affirm the judgment of the district
court and vacate the decision of the court of appeals.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
All justices concur except Zager, J., and Cady, C.J., who concur in
part and dissent in part.
2Our decision also does not foreclose a possible claim that Brothern received
ineffective assistance during plea negotiations, if his counsel had been told of the
State’s plans to seek an enhancement but failed to pass this information along to his
#10–0319, State v. Brothern
ZAGER, Justice (concurring in part and dissenting in part).
While I agree with the decision reached by the majority in affirming
the district court, I write separately to voice my disagreement with the
conclusion that there may be circumstances when a timely filed
amendment to add an habitual offender sentencing enhancement should
not be allowed.
I specifically object to the notion that the substantial
rights of the defendant can be prejudiced depending on whether the
defendant had prior notice that an habitual offender enhancement might
be filed. Consistent with State v. Bruce, the State timely filed its motion
to amend the trial information to add the habitual offender sentencing
enhancement. See State v. Bruce, 795 N.W.2d 1, 3 (Iowa 2011) (“Absent
a specific definition in the statute or rule, we believe the phrase ‘during
the trial’ means the period of time in which the trier of fact hears
evidence and makes a decision based on that evidence.”). As correctly
noted by the court of appeals, it is axiomatic that habitual offender
statutes do not charge a separate offense or create a crime.
Brothern, No. 10–0319, 2012 WL 5601097, at 2 (Iowa Ct. App. Nov. 15,
2012) (citing State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000)). Rather,
they merely enhance punishment on the current offense.
counsel was not ineffective for failing to object to the timely amendment.
Additionally, Brothern does not and cannot claim that this
amendment prejudiced his substantial rights because it created such
surprise that he had to change his trial strategy to meet the amendment.
See State v. Maghee, 573 N.W.2d 1, 6 (Iowa 1997).
prejudices the substantial rights of the defendant if it creates such
surprise that the defendant would have to change trial strategy to meet
the charge in the amended information.” His trial strategy was always to
deny he committed the domestic assault.
The amendment created
neither surprise nor necessitated a change in trial strategy.
I would simply conclude that trial counsel did not breach an
essential duty by failing to object to the amendment to the trial
information to add the habitual offender sentencing enhancement when
the motion was timely filed. Any objection to the proposed amendment
would have been without merit.
I would deny Brothern’s claim of
ineffective assistance of counsel for trial counsel not objecting to the
amendment and leave it to postconviction proceedings to sort out any
claim that trial counsel failed to advise Brothern during plea negotiations
that the State could amend the trial information.
Cady, C.J., joins this concurrence in part and dissent in part.