IN THE COURT OF APPEALS OF IOWA No. 17-1851 Filed November 7, 2018 STATE OF IOWA, Plaintiff-Appellee, vs. ALFRED JOE RAY GOMEZ, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley, District Associate Judge. Alfred Joe Ray Gomez appeals the judgment and sentence entered upon his conviction of operating a motor vehicle while under the influence, third offense, as an habitual offender. CONVICTION AFFIRMED. SENTENCE VACATED. CASE REMANDED FOR RESENTENCING. Matthew R. Metzgar of Rhinehart Law, PC, Sioux City, for appellant. Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee. Considered by Bower, P.J., McDonald, J., and Carr, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018). 2 CARR, Senior Judge. Alfred Joe Ray Gomez appeals the judgment and sentence entered after he entered an Alford1 plea to operating a motor vehicle while under the influence (OWI), third offense, as an habitual offender. See Iowa Code § 321J.2 (2016); see also id. §§ 902.8, 902.9(1)(c) (providing minimum and maximum sentences for habitual offenders). He contends his trial counsel was ineffective in failing to file a motion in arrest of judgment challenging the knowing and voluntary nature of his plea. He also contends the court abused its discretion in sentencing him according to the habitual-offender enhancement. I. Plea Proceeding. Gomez first challenges the knowing and voluntary nature of his plea. Because he did not challenge his plea by motion in arrest of judgment, he raises this claim as one of ineffective assistance of counsel. See Iowa R. Crim. P. 2.24(3)(b) (stating that a defendant’s failure to challenge the adequacy of a 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, 133 (Iowa 2006) (noting a defendant’s failure to file a motion in arrest of judgment does not bar a challenge to a plea if the failure to file a motion in arrest of judgment resulted from ineffective assistance of counsel). We review this claim de novo. See Straw, 709 N.W.2d at 133. In order to establish a claim of ineffective assistance of counsel, a defendant must show “(1) his trial counsel failed to perform an essential duty, and (2) this 1 North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding “express admission of guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty”). 3 failure resulted in prejudice.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Counsel breaches an essential duty by failing to file a motion in arrest of judgment when a defendant’s plea was not knowing and voluntary. See id. at 134. Prejudice is established if the record shows a reasonable probability that the defendant would not have entered a plea and would have insisted on going to trial if counsel had not breached that duty. See id. at 138 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “Failure ...
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