State of Iowa v. Anthony George Brothern, 2013 Iowa Sup. LEXIS 67

Brothern beat his live-in girlfriend, held a knife to her chest, and the incident occurred June 21, 2009; charges followed with two counts: count I—enhanced domestic abuse assault, originally labeled as a Class D felony with an enhancement referenced but the information cited the unenhanced provision; count II—assault domestic abuse by use or display of a weapon (aggravated misdemeanor).
At trial, after evidence closed but before closing arguments, the State moved to amend count I and II to add the 708.2A(4) enhancement and, for count I, a habitual offender enhancement based on two prior felonies (extortion and prohibited acts).
Brothern’s trial counsel objected to count II’s amendment on due process grounds but did not object to count I’s amendment; the district court granted the amendments.
The jury found Brothern guilty on count I and acquitted count II; a separate trial on the enhancements followed; Brothern later pled guilty to both enhancements and was sentenced as a habitual offender.
Brothern’s posttrial motions challenged the legality of the habitual-offender enhancement as improper under amendment rules and ineffective assistance; the posttrial record was limited for the ineffective-assistance claim.
The Iowa Supreme Court affirmed the conviction and sentence, vacated the court of appeals’ decision, and held the record insufficient to resolve the ineffective-assistance claim without postconviction relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether amendment to count I adding habitual offender status was permissible after evidence closed	Brothern argues the amendment prejudiced substantial rights and violated rule 2.4(8) and due process.	State contends amendments to enhance sentencing based on prior convictions are permissible and not a wholly new offense.	Amendment could be allowed if not prejudicing substantial rights; record insufficient to decide due to notice issues; depends on whether prejudice existed.
Whether trial counsel’s failure to object to the amendment was ineffective assistance	Brothern asserts counsel breached duty by failing to object, causing prejudice.	State argues no breach given timely amendment and non-new offense; any prejudice negligible since plea strategy not altered.	Record insufficient to determine ineffectiveness on direct appeal; claim preserved for postconviction relief if notice issues are shown.
Whether the appellate record is adequate to address the ineffective-assistance claim on direct appeal	Brothern contends record is sufficient to resolve the claim on direct appeal.	State maintains the issue should be resolved as an ineffective-assistance claim via postconviction relief.	If record insufficient, claim preserved for postconviction relief; we review de novo on the appellate record.

State v. Bruce, 795 N.W.2d 1 (Iowa 2011) (defines ‘during the trial’ as the period evidence is heard; amendment timing matters)
Maghee, 573 N.W.2d 1 (Iowa 1997) (amendment to charge did not prejudice substantial rights where defense strategy remained viable)
Jones, 817 N.W.2d 11 (Iowa 2012) (constitutional notice considerations in amendments)
Berney, 378 N.W.2d 915 (Iowa 1985) (recidivist penalty is not a separate offense; amendment may be allowed)
Brisco, 816 N.W.2d 415 (Iowa Ct.App.2012) (indictment amendment to correct misstatement regarding substance; on notice substance of charge)
Fountain, 786 N.W.2d 260 (Iowa 2010) (ineffective-assistance exceptions to error preservation)
Johnson, 784 N.W.2d 192 (Iowa 2010) (application of error preservation standards in IA appellate review)