Opinion
No. 3-909 / 03-1020.
Filed December 10, 2003.
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer and Bruce B. Zager, Judges.
Defendant appeals from the sentences imposed by the district court following his guilty pleas. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Mason Joseph Johnson appeals from the sentences imposed by the district court following his guilty pleas to extortion, causing bodily injury, and two counts of third-degree theft. He contends the district court erred in failing to sentence him to an alternate mental health program, and in ordering him to serve consecutive terms.
We review a sentence imposed in a criminal case for correction of errors at law and will not reverse absent an abuse of discretion or some defect in the sentencing procedure. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Upon review of the record made at the sentencing hearing, we cannot find the court abused its discretion in sentencing Johnson to consecutive prison terms. However, Johnson contends his counsel was ineffective in failing to adequately prepare and present evidence at the sentencing hearing. Specifically, Johnson claims counsel was ineffective in failing to subpoena or otherwise compel the testimony of staff at the Dual Diagnosis Program, which Johnson sought admission into in lieu of a prison sentence.
We review claims of ineffective assistance of counsel de novo. State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003). To prove ineffective assistance of counsel, Johnson must show: (1) trial counsel failed to perform an essential duty and (2) Johnson was prejudiced by counsel's errors. Id. Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).
As the record is insufficient to address Johnson's claim on direct appeal, we preserve for postconviction relief his claim counsel was ineffective in failing to adequately prepare and present evidence at his sentencing hearing.