Opinion
No. 2-019 / 01-0628.
Filed April 24, 2002.
Appeal from the Iowa District Court for Webster County, FREDRICK E. BREEN, Judge.
Jennifer A. Blythe appeals the judgment and sentence entered following her conviction for forgery as an aggravated misdemeanor pursuant to her guilty plea. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Ron Robertson, County Attorney, and Wendy Samuelson and Tim Schott, Assistant County Attorneys, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Jennifer A. Blythe appeals the judgment and sentence entered following her conviction for forgery as an aggravated misdemeanor pursuant to her guilty plea. She contends her counsel was ineffective for failing to use a psychological evaluation to persuade the court to enter concurrent rather than consecutive sentences. We affirm.
Jennifer Blythe was initially charged with felony forgery after admitting to her co-workers at J.C. Penney's that she had used Phyllis and Doug Hoovers' credit card number and signed the Hoovers' name without their permission to purchase a Penney's gift card and to purchase gifts with the card. The State agreed to amend the charge to aggravated misdemeanor forgery and Blythe agreed to plead guilty to this offense. As part of the plea agreement the State and Blythe agreed to recommend a two-year prison term to run consecutively to an earlier-imposed Polk County sentence.
On March 19, 2001 Blythe entered a written and oral guilty plea to aggravated misdemeanor forgery in violation of Iowa Code sections 715A.1, 715A.2(1) and 715A.2(2)(b) (1999) and requested immediate sentencing. During the sentencing proceedings Blythe requested that her sentence be imposed concurrently with the Polk County sentence so she could be released sooner to care for her mother who had recently been in a car accident. The district court considered Blythe's request, but imposed the two-year sentence and ordered it to be served consecutively to the Polk County sentence as the parties had agreed to recommend.
Blythe's only claim on appeal is that her counsel was ineffective in failing to bring to the court's attention a psychological evaluation performed on her some seven months before sentencing and four months before the offenses that led to the forgery charge. Blythe alleges the evaluation found that the reason for her legal problems was she does not understand financial principles. She contends if counsel had made the court aware of this evaluation and its result the court would have granted her request for concurrent sentences. While we often preserve ineffective assistance of counsel claims for a postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Blythe asserts the record is adequate, the State does not disagree, and we find the record adequate.
Many of the standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 141-44 (Iowa 2001). In assessing claims of ineffective assistance of counsel a defendant's conduct is examined as well as that of his attorney. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; State v. Rice, 543 N.W.2d 884, 888-89 (Iowa 1996); see also, United States v. Wilson, 115 F.3d 1185, 1191 (4th Cir. 1997) (stating a defendant is responsible for informing his counsel of pertinent facts of which the defendant, but not counsel, is aware).
We find nothing in the record to indicate counsel knew, or should have known, of the existence of a psychological evaluation. We therefore conclude counsel did not breach an essential duty by not making an argument based upon it. Furthermore, Blythe herself had an opportunity to inform the court of the evaluation and its purported findings when she requested concurrent sentences during her allocution. However, the only reason she presented in support of her request was a desire for an earlier release in order to be able to take care of her ailing mother. If Blythe believed the evaluation would affect the outcome of her sentencing she could have informed her attorney, the court, or both about it at some point prior to imposition of sentence. She did not.
Finally, we find Blythe's claim that the court would have "in all likelihood" granted her request for concurrent sentences based on the psychological evaluation's result highly speculative when clearly the court was relying at least in part on the plea agreement under which Blythe had agreed to a consecutive sentence in exchange for reduction of the charge from a felony to an aggravated misdemeanor. Such speculation falls far short of the type of showing required to demonstrate ineffective assistance. See State v. Nebinger, 412 N.W.2d 180, 193 (Iowa Ct.App. 1987).
We conclude Blythe has failed to prove defense counsel breached an essential duty. Her claim of ineffective assistance of counsel fails and the judgment and sentence are affirmed.
AFFIRMED.