State of Iowa v. Anthony George Brothern

               IN THE SUPREME COURT OF IOWA
                               No. 10–0319

                            Filed June 7, 2013


STATE OF IOWA,

      Appellee,

vs.

ANTHONY GEORGE BROTHERN,

      Appellant.



      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.          COURT OF

APPEALS     DECISION      VACATED;      DISTRICT     COURT      JUDGMENT

AFFIRMED.



      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.
                                      2

MANSFIELD, Justice.

      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

reported   the   incident    to   Waterloo   police.   The   injuries   were

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.”          It

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.
                                    3

      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

enhancement.

      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

information.   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
                                        4

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
       enhancement.

He also asserted, generally, that his original trial counsel had been

“ineffective.”

       At the hearing on his posttrial motions, Brothern’s new attorney

made     the     following   argument   regarding   the   habitual   offender

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
                                    5
      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.            He explained,
“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.
                                        6

      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

enhancement.      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

been sustained.

      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.”       

Id.

§ 814.7(2). There is no provision for bringing an ineffective-assistance-

of-counsel claim before the direct appeal, even when as here there has
been a substitution of counsel.
                                       7

      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 well-

established 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-
                                       8

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

(Iowa 2006).

         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

must      show    “a   reasonable   probability   that,   but   for   counsel’s

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 at 698

.

         Pinpointing a breach of duty in this case requires consideration of

whether Brothern’s missing objection would have succeeded in the first

place.     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.
                                     9

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

(Iowa 1997).    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.”            State v.

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

;
                                      10

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

offense”).

      This   brings   us   to   the   following   language   in   rule   2.4(8):

“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

amended information.”       Maghee, 

573 N.W.2d at 6

 (citing State v.
                                   11

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

.     “His

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

amended petition”).

      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
                                         12

we used in Maghee, 

573 N.W.2d at 6

) could include a decision to plead

guilty.

       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

parole,   and    he    appealed    the    timing    of   the   habitual    offender

enhancement. 

Id.

       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.
                                     13
      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).       Accordingly, the

court found that the State should not have been allowed to amend the

indictment. 

Id.

      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
                                    14

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

trial.    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
                                      15

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
offender.

            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

information   during   trial   to   add    an   enhancement   can   prejudice

“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
                                     16

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

Code section.   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.
                                       17

      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

offender status.     Almost six weeks elapsed between the trial on the

assault domestic abuse charges and the scheduled trial on the

enhancements.

      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
                                         18

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

       IV. Conclusion.

       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

JUDGMENT AFFIRMED.

       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
client.
                                    19
                                              #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.       State v.

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.           

Id.

   Trial

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).        (“An 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 amended information.” His trial strategy was always to
                                    20

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.