State of Iowa v. Bryan Holmes

IN THE COURT OF APPEALS OF IOWA

No. 20-0148
Filed September 22, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

BRYAN HOLMES,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, DeDra

Schroeder, Judge.

Bryan Holmes appeals his convictions for three counts of third-degree

sexual abuse. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Greer and Badding, JJ.
2

BADDING, Judge.

Bryan Holmes appeals his convictions for three counts of third-degree

sexual abuse following a December 2019 jury trial. The district court imposed

sentences of no more than ten years in prison on each count, with two sentences

running concurrently to each other and consecutively to the third. Holmes filed his

notice of appeal in January 2020.

Holmes claims his trial counsel provided ineffective assistance by failing to

object to a jury instruction our supreme court found was erroneous in State v.

Shorter, 945 N.W.2d 1, 11 (Iowa 2020). Effective July 1, 2019, the legislature

modified Iowa law to eliminate a defendant’s ability to pursue a claim of ineffective

assistance of counsel on direct appeal from a criminal conviction. See 2019 Iowa

Acts ch. 140, § 31 (codified at Iowa Code § 814.7 (2020)). Holmes challenges the

amendment to Iowa Code section 814.7 on constitutional grounds, but our

supreme court rejected similar challenges while this appeal was pending. See

State v. Treptow, 960 N.W.2d 98, 107-08 (Iowa 2021) (rejecting claims that the

amendment violates due process and deprives a defendant of the right to effective

assistance of counsel); State v. Tucker, 959 N.W.2d 140, 151 (Iowa 2021)

(rejecting claim that the amendment violates the separation-of-powers doctrine).

Because Holmes appealed after the amendment took effect, we cannot

decide his ineffective-assistance claim.1 See Iowa Code § 814.7 (stating

ineffective-assistance claims “shall not be decided on direct appeal”); accord State

1 Holmes raises an alternative argument, asking us to adopt the plain error rule
rather than decide his claim under an ineffective-assistance-of-counsel rubric. Our
supreme court has refused to do so, most recently in Treptow, 960 N.W.2d at 109
(“We have repeatedly rejected plain error review and will not adopt it now.”).
3

v. Warren, 955 N.W.2d 848, 856 (Iowa 2021) (limiting consideration of ineffective-

assistance claims to direct appeals pending on July 1, 2019). Holmes may pursue

this claim in a postconviction-relief proceeding. See Iowa Code § 814.7 (“An

ineffective assistance of counsel claim in a criminal case shall be determined by

filing an application for postconviction relief pursuant to chapter 822.”).

AFFIRMED.