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IN THE COURT OF APPEALS OF IOWA No. 7-853 / 07-0144 Filed December 28, 2007 STATE OF IOWA, Plaintiff-Appellee, vs. MARK RAYMOND SORTER, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Carol L. Coppola (trial) and Gregory Brandt (sentencing), Judges.

Defendant appeals his sentence and conviction for forgery as an habitual offender. REVERSED AND REMANDED FOR ORDER OF DISMISSAL.

Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and James P. Ward, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., Vaitheswaran and Baker, JJ.

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SACKETT, C.J. Defendant, Mark Raymond Sorter, was convicted of forgery as an habitual offender in violation of Iowa Code sections 715A.2 and 902.8 (2005). The

defendant appeals his conviction and sentence claiming, (1) there was insufficient evidence to support the conviction, (2) he received ineffective assistance of counsel, and (3) the court had no authority to impose a fine on the defendant's forgery conviction as an habitual offender. conviction and remand for an order of dismissal. BACKGROUND. In the middle of May 2006 someone stole several boxes of checks from Barbara Ann Smith's home in Des Moines. Smith reported the theft to police and cancelled the checking account. On June 1, 2006, Connie Dobberthein and the defendant went to New Impressions Spa and Salon in Des Moines to receive haircuts. As they waited, they were each asked to complete welcome forms. On the forms Connie identified herself as Barbara Ann Smith and the defendant identified himself as Mark Smith. Connie used one of the checks stolen from Barbara Ann Smith to pay for haircuts and styling products for herself and the defendant. Connie signed the check as Barbara A. Smith. The salon owner learned the check bounced and called the police. The stylists and spa employees identified Connie as the person who wrote the check and the defendant as the man with her in the salon. After a jury trial, the defendant was convicted of forgery. Defendant's counsel moved for a directed verdict and judgment of acquittal based on insufficient evidence and the court overruled these motions. The defendant We reverse the

stipulated to having two prior felony convictions and thus was sentenced as an

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habitual offender. The court sentenced the defendant to an indeterminate term of imprisonment not to exceed fifteen years. suspended a $750 fine. STANDARD OF REVIEW. We review a court's ruling on challenges to sufficiency of the evidence, such as motions for judgment of acquittal, for correction of errors at law. Iowa R. App. P. 6.4; State v. Hutchinson, 721 N.W.2d 776, 780 (Iowa 2006). Ineffective assistance of counsel claims are analyzed by a de novo review. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). ERROR PRESERVATION. The defendant first argues there was The court also imposed but

insufficient evidence for the jury to convict him of forgery under the instructions submitted to the jury. "To preserve error on a claim of insufficient evidence for appellate review in a criminal case, the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal." State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). Even if a motion for judgment of acquittal is filed, error is not preserved if the specific claim is not included. Id. The defendant's trial counsel moved for a directed verdict and filed a motion for a new trial and a motion in arrest of judgment challenging the sufficiency of the evidence. However, defendant's counsel did not state the

specific grounds of error that defendant claims here. Therefore, error was not preserved. Defendant claims that if error is not preserved on this claim, he

received ineffective assistance of counsel when counsel failed to object on this specific ground. Errors due to ineffective counsel do not need to be preserved for appeal. State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006).

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FORGERY.

Defendant contends he received ineffective assistance of

counsel when his attorney did not argue that there was insufficient evidence that the defendant or Connie "altered a writing" to support a forgery conviction. There are several means of committing forgery under the applicable statute. It states in relevant part: 1. A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following: a. Alters a writing of another without the other's permission. b. Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, or so that it purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or so that it purports to be a copy of an original when no such original existed. c. Utters a writing which the person knows to be forged in a manner specified in paragraph "a" or "b". d. Possesses a writing which the person knows to be forged in a manner specified in paragraph "a" or "b". Iowa Code

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