State of Iowa v. Anthony George Brothern

Citations: 832 N.W.2d 187; 2013 WL 2450610; 2013 Iowa Sup. LEXIS 67Docket: 10–0319

Court: Supreme Court of Iowa; June 7, 2013; Iowa; State Supreme Court

Original Court Document: View Document

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The Supreme Court of Iowa reviewed the case of Anthony George Brothern, who appealed his conviction and sentence after the Iowa Court of Appeals rejected his claim of ineffective assistance of counsel regarding a habitual offender enhancement. The Supreme Court vacated the Court of Appeals decision but affirmed the district court's judgment. 

The central issue was whether Brothern's trial counsel's failure to object to an amendment of the trial information to include a habitual offender enhancement after the evidence had closed constituted ineffective assistance. The Supreme Court concluded that there are situations where such amendments should not be permitted post-evidence and found the record inadequate to definitively address Brothern's ineffective-assistance claim. 

The facts revealed that on June 21, 2009, Brothern assaulted his girlfriend, resulting in charges of “Assault Domestic Abuse Causing Bodily Injury—Enhanced,” under Iowa Code section 708.2A(3)(b), with an intention to pursue felony assault due to his prior convictions. However, the original information cited an aggravated misdemeanor instead of the enhanced felony. At trial, after the evidence was presented, the State moved to amend the information to reflect the enhanced felony charge and to include a habitual offender enhancement based on Brothern’s previous felony convictions. While Brothern's counsel objected to the amendment of count II on due process grounds, there was no objection to count I. The court allowed the amendment, leading to Brothern's conviction on count I and acquittal on count II, with a separate trial scheduled for the enhancements related to count I.

Brothern's attorney withdrew, and a new attorney was appointed. On the day of the trial, Brothern admitted to four prior convictions and pled guilty to enhancements under sections 708.2A(4) and 902.8. Before sentencing, he filed a combined motion for a new trial and arrest of judgment, claiming the jury's verdict was contrary to law. He argued that it was improper to impose an habitual offender charge as an enhancement of a misdemeanor and that his original counsel was ineffective. During the hearing, his new attorney contended that the habitual offender enhancement violated procedural rules regarding amendments to trial information, which could prejudice the defendant's case. The prosecutor noted that prior to trial, the state had offered a plea deal that included not filing the habitual enhancement, which Brothern rejected. The court denied Brothern's motions, ruling that the habitual offender enhancement was appropriately applied and did not constitute a new offense. Brothern was sentenced to up to fifteen years, with a parole eligibility after three years. He appealed, claiming ineffective assistance of counsel for not objecting to the enhancement, arguing it violated his due process rights. The court of appeals found his claims sufficient but ultimately rejected them. The case was then transferred for further review.

The defendant did not object to the State's amendment of count I to include a habitual offender enhancement until after the jury's verdict on the domestic abuse assault charges. Timely objections are generally required "at the earliest opportunity." The defendant claimed ineffective assistance of counsel to circumvent potential error preservation issues, recognizing that such claims can be raised on direct appeal but are typically addressed through postconviction relief. The State did not contest the waiver of objection but argued the merits, asserting the amendment was valid. The district court ruled the amendment was merely a sentencing change, not a new offense, and did not explore the ineffective assistance claim. Consequently, the appellate review considers whether the record is sufficient for the ineffective assistance claim, as both parties treated it as newly raised. To succeed, the defendant must show that counsel breached a duty and caused prejudice, proving both elements by a preponderance of the evidence.

To establish a breach of duty by trial counsel, Brothern must demonstrate that the attorney's performance was below the standard of a reasonably competent attorney, as outlined in Strickland v. Washington. Counsel cannot be deemed incompetent for not pursuing a meritless issue. To prove prejudice from ineffective assistance, Brothern must show a reasonable probability that the outcome would have differed absent the counsel’s errors. The assessment of a breach requires determining whether Brothern's potential objection would have succeeded; if it would not, there is no breach.

Iowa Rule of Criminal Procedure 2.4(8) allows for amending an indictment to correct errors or omissions, provided it does not prejudice the defendant's substantial rights or charge a wholly new offense. The term "indictment" includes trial information, and the phrase "during the trial" is understood to encompass the evidentiary phase leading to the jury's decision. In this case, the State's amendment occurred after evidence was presented but before the jury deliberated, qualifying as "before or during trial." The amendment did not constitute a new offense, as it merely enhanced the charge based on Brothern's prior convictions, similar to precedents where enhancements did not define separate crimes but allowed for increased penalties. The language in rule 2.4(8) regarding substantial rights implies compliance with constitutional guarantees, with the court aiming to avoid constitutional issues in rule interpretation.

Brothern's argument centers on federal and state constitutional due process, emphasizing his Sixth Amendment rights and corresponding Iowa Constitutional provisions regarding being informed of accusations. An amendment that fails to meet these constitutional standards would significantly prejudice a defendant's rights. Compliance with rule 2.4(8) suggests that constitutional notice requirements are also satisfied. The excerpt compares past cases, notably Maghee and Seering, to illustrate that procedural due process mandates adequate notice and the opportunity to be heard. It states that an amendment may prejudice a defendant's rights if it causes surprise necessitating a change in trial strategy. In Maghee, the elevation of a cocaine charge from a class "C" to a class "B" felony occurred on the day of trial, yet the court found no violation because the defendant had been adequately notified through testimony regarding drug amounts and did not request a continuance, indicating readiness to defend against the elevated charge. The discussion also touches on whether earlier knowledge of an amendment might have influenced a defendant's plea decision, suggesting that "defense strategy" could encompass such considerations. The excerpt references a Mississippi case, Gowdy v. State, where an amendment to a felony DUI indictment added habitual offender status, leading to a life sentence, raising questions about the timing of such amendments and the defendant's ability to prepare a defense.

The Mississippi Supreme Court established that the "unfair surprise" restriction requires defendants to be notified of the nature and cause of accusations against them, including applicable penalties, to ensure they can make informed pleas. In a case involving an amendment to an indictment, the court ruled against the amendment because the defendant lacked adequate notice, which hindered his ability to enter an informed plea. Conversely, in McCain v. State, the court upheld a similar amendment because the defendant had received prior notice of the state's intent to seek habitual offender status during plea negotiations, allowing him to enter an intelligent plea. 

The California Supreme Court also addressed due process in a similar context, ruling that no violation occurred when prior felony convictions were added after a verdict, as the defendant had been aware of the state's intentions from the outset and was not surprised. The court emphasized the importance of the defendant's knowledge in determining whether due process was violated. Similarly, the Arizona Supreme Court found no surprise or prejudice in an indictment amendment because the prosecutor had clearly indicated the intent to pursue an enhanced penalty before trial. Other cases, such as Duke v. State, reinforced this principle, noting that awareness of potential charges during plea negotiations mitigated claims of unfair surprise.

In Luna v. Commonwealth, the Kentucky Court of Appeals upheld the amendment of an indictment to include habitual offender status, determining that the defendant's substantial rights were not compromised since he had previously declined a plea offer. In a similar case, State v. Alexander, the South Dakota Supreme Court ruled that amending an indictment to add habitual offender status, despite an omission of supplemental allegations, did not constitute error because the defendant was aware of the potential penalties at arraignment and understood the state's intentions. 

The court noted that while amending information during trial could prejudice a defendant's rights if there was no prior notice, in this case, Brothern was sufficiently informed about the felony assault enhancement prior to the amendment. The initial trial information indicated a "Class D Felony" and referenced "ENHANCED," alongside his prior convictions necessary for enhancement. The record also included the state's intention to pursue enhanced charges based on Brothern's previous domestic abuse assault convictions. 

However, the original trial information failed to mention Brothern's extortion and prohibited acts convictions essential for establishing habitual offender status. Despite this omission, the state maintained that Brothern's prior counsel was informed of the habitual status if he rejected the plea deal. There was no claim from Brothern that this omission adversely affected his trial strategy, and he had adequate time to prepare for the habitual offender hearing. The court concluded that the amendment did not violate Brothern's rights, as he was aware of the potential charges well in advance of the trial on the enhancements.

Brothern had a right under rule 2.4(8) to be informed about the potential for a habitual offender enhancement if he chose to go to trial instead of pleading guilty. The current record does not clarify whether he was given such notice, as only the prosecutor's professional statement was available, which the district court did not consider. The court interpreted rule 2.4(8) too narrowly by focusing solely on whether the enhancement constituted a new offense, neglecting the requirement to avoid prejudice to the defendant's substantial rights. While the conviction and sentence are affirmed, Brothern may pursue postconviction relief for ineffective assistance of counsel, provided he can demonstrate a lack of notice regarding the enhancement and that he would have opted to plead guilty had he received proper notice. The late amendment to the charges would not have impacted his trial strategy but may have influenced his plea strategy. 

The court's decision affirms the district court's judgment while vacating the court of appeals' decision. All justices concur except for Justices Zager and Cady, who partially dissent, arguing that timely amendments to add sentencing enhancements should generally be allowed and asserting that the amendment did not prejudice Brothern's substantial rights. They conclude that trial counsel was not ineffective for failing to object to the amendment, as it did not surprise Brothern or require a change in his trial strategy. Any claims regarding counsel's advice during plea negotiations should be addressed in postconviction proceedings.