State of Iowa v. Anthony George Brothern

832 N.W.2d 187, 2013 WL 2450610, 2013 Iowa Sup. LEXIS 67
CourtSupreme Court of Iowa
DecidedJune 7, 2013
Docket10–0319
StatusPublished
Cited by68 cases

This text of 832 N.W.2d 187 (State of Iowa v. Anthony George Brothern) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Iowa v. Anthony George Brothern, 832 N.W.2d 187, 2013 WL 2450610, 2013 Iowa Sup. LEXIS 67 (iowa 2013).

Opinions

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)(6), 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 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 Broth-ern 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 with[190]*190draw, 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 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 Hon- or, 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 [191]*191three 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dieujdonne Manirabaruta v. State of Iowa
Court of Appeals of Iowa, 2025
Charles Jonas Hasselmann v. State of Iowa
Court of Appeals of Iowa, 2025
State of Iowa v. Matthew Linden Noehl
Court of Appeals of Iowa, 2024
Logan Jeffrey Shoemaker v. State of Iowa
Court of Appeals of Iowa, 2024
LaForest Bennett v. State of Iowa
Court of Appeals of Iowa, 2021
State of Iowa v. James Paul Vandermark
Court of Appeals of Iowa, 2021
State of Iowa v. Douglas Kent Lindaman
Court of Appeals of Iowa, 2020
State of Iowa v. Ken Lorenze Kuhse
Supreme Court of Iowa, 2020
State of Iowa v. Taner Vongsengeth Mann
Court of Appeals of Iowa, 2019
Colby Ray Puckett v. State of Iowa
Court of Appeals of Iowa, 2018
State of Iowa v. Ervin Wilson
922 N.W.2d 104 (Court of Appeals of Iowa, 2018)
State of Iowa v. Robert Christopher Carroll
919 N.W.2d 766 (Court of Appeals of Iowa, 2018)
State of Iowa v. Clifford Arnell Gooden
919 N.W.2d 636 (Court of Appeals of Iowa, 2018)
State of Iowa v. Charles Earl Jones
918 N.W.2d 502 (Court of Appeals of Iowa, 2018)
State of Iowa v. Justin Michael Stickrod
Court of Appeals of Iowa, 2018
State of Iowa v. Michael T. Johnson
Court of Appeals of Iowa, 2018
State of Iowa v. Amber Marie Hill
Court of Appeals of Iowa, 2018
State v. Taylor
Court of Appeals of Iowa, 2018
State v. Banes
910 N.W.2d 634 (Court of Appeals of Iowa, 2018)
State v. King
Court of Appeals of Iowa, 2017

Cite This Page — Counsel Stack

Bluebook (online)
832 N.W.2d 187, 2013 WL 2450610, 2013 Iowa Sup. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-iowa-v-anthony-george-brothern-iowa-2013.