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Case No. 17-1394

State of Iowa
v.
Joel Enrique Herrarte Jr.

Appellee

State of Iowa

Appellant

Joel Enrique Herrarte Jr.

Attorneys for Appellee

Kelli A. Huser, Assistant Attorney General

Attorneys for Appellant

Theresa R. Wilson, Assistant Appellate Defender

Court of Appeals

Court of Appeals Opinion

Opinion Number:
17-1394
Date Published:
Sep 12, 2018
Summary

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            Joel Herrarte Jr. challenges the district court’s determination that kidnapping in the third degree was a lesser-included offense of kidnapping in the second degree.  Alternatively, he claims his trial counsel provided ineffective assistance for urging the court to determine that it was a lesser-included offense.  Additionally, he maintains the trial court relied upon an improper factor during sentencing.  OPINION HOLDS: Herrarte failed to preserve error regarding whether third-degree kidnapping is a lesser-included offense of kidnapping in the second degree, and we do not consider it.  The record is not adequate to decide his alternative argument, raised under the ineffective-assistance framework, so we preserve it to allow for further development of the record in postconviction-relief proceedings.  Because the district court did not rely on an improper factor during sentencing, we affirm Herrarte’s sentences.

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