STATE v. BATTANI, 796 N.W.2d 457 (Iowa App. 2004)

STATE OF IOWA, Plaintiff-Appellee, v. STEPHEN RAYMOND BATTANI, Defendant-Appellant.

No. 3-974 / 03-0559.Court of Appeals of Iowa.
Filed January 14, 2004.

Appeal from the Iowa District Court for Polk County, Gregory D. Brandt (plea) and Joe E. Smith, (sentencing) District Associate Judges.

Battani appeals his conviction and sentence for operating while intoxicated pursuant to Iowa Code section 321J.2 (2001).AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, John Sarcone, County Attorney, and Romonda Belcher, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Hecht, and Vaitheswaran, JJ.

VAITHESWARAN, J.

Stephen Battani signed a “petition to plead guilty” to operating a motor vehicle while intoxicated, third offense, a Class D felony. See Iowa Code § 321J.2 (2001). The district associate judge presiding over the plea proceeding asked Battani whether he wished to have the court review the rights he was waiving. Battani answered, “[n]o.” In light of Battani’s response, the court dispensed with the dialogue prescribed by Iowa Rule of Criminal Procedure 2.8(2)(b).

On appeal, Battani claims trial counsel was ineffective in not objecting to the court’s failure to engage in a Rule 2.8(2)(b) colloquy in this felony case. He further claims this omission amounted to per se ineffectiveness. We preserve this issue for postconviction relief to allow counsel an opportunity to respond to the allegation. See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998).

AFFIRMED.