Opinion
No. 3-730 / 02-1722
Filed October 29, 2003
Appeal from the Iowa District Court forScott County, Nancy S. Tabor, Judge.
Daniel Skalla appeals sentences imposed following his guilty plea to child endangerment causing serious injury in violation of Iowa Code section 726.6(4) (2001) and willful injury causing bodily injury in violation of Iowa Code section 708.4(2). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, William Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee-State.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Daniel Skalla appeals sentences imposed following his guilty plea to child endangerment causing serious injury in violation of Iowa Code section 726.6(4) (2001), and willful injury causing bodily injury in violation of Iowa Code section 708.4(2). We affirm.
I. Background Facts Proceedings
The State charged Skalla with multiple acts of child endangerment (Count I), willful injury (Count II), and child endangerment resulting in bodily injury (Count III), based on allegations that he physically abused three-year-old J.F. Pursuant to a plea agreement, Skalla pled guilty to both the lesser-included offense under Count I of child endangerment resulting in serious injury, and Count II. Skalla admitted that on May 10, 2002, he struck J.F. in the head with his forearm, bit J.F.'s ear, and picked J.F. up off the ground by his neck.
At the sentencing hearing, and without objection, the State entered seven pictures of J.F. into evidence. The pictures exhibited multiple injuries to J.F.'s head, face, neck, back, arm, and chest. The State also argued J.F.'s abuse "was not just a one-time incident. This was not just a one-time injury." Skalla's counsel conceded, "this was more than one incident over a two- or three-day period . . . ." The trial court sentenced Skalla to ten years imprisonment with a fine of $1000 under Count I, and five years imprisonment with a fine of $1000 plus $300 in restitution to the victim's mother under Count II. The court further ordered the prison terms be served consecutively.
Skalla appeals his sentence and raises the following issue for our review:
I. Trial counsel rendered ineffective assistance by inviting the district court to consider improper sentencing factors.
Skalla asks this court to remand for resentencing, or in the alternative, preserve error for possible postconvition relief.
II. Standard of Review
We review ineffective assistance of counsel claims de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
III. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, Skalla has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. 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, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first prong, Skalla faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We deem the record in this case is adequate to decide the issue raised on direct appeal.
On appeal, Skalla argues his counsel was ineffective by allowing the trial court to consider improper sentencing factors. He believes his counsel should have objected to the prosecution's admittance of several pictures of J.F., and should have objected to the references made concerning abuse over a period of days. He further argues that his counsel's reference to abuse over a period of days was improper and prejudiced his sentence. Because Skalla's ineffective assistance claim is couched in terms of the court's use of unproven or unprosecuted offenses as improper sentencing factors, we will address the merits in that context.
In his plea agreement, Skalla admitted he abused J.F. on May 10, 2002, and specifically stated he bit J.F.'s ear, grabbed J.F. by the neck, and hit J.F. in the head with his forearm. As noted earlier, the prosecution offered several pictures displaying injuries beyond those Skalla admitted to inflicting. Both the prosecution and the defense counsel referred to Skalla's abusive behavior as occurring over a period of days. Skalla argues these references and exhibits were improperly admitted and the court relied on them in determining the sentence imposed.
A sentence will be set aside and remanded for resentencing "if the sentencing court relied upon charges of an unprosecuted offense that was neither admitted by the defendant nor otherwise proved." State v. Black, 324 N.W.2d 313, 315 (Iowa 1982). Even if we assume without deciding that Skalla's counsel should have objected to the pictures and abuse references, he cannot prove he was prejudiced by the submissions. In order to show prejudice, Skalla must show the court relied on the unproven evidence in determining the sentence imposed.
In reaching the sentencing decision, the court stated:
This is very serious. It is not a one-time thing. I find in this case, because of the severity of the crime, that there is a long need for rehabilitation and that's why I ordered the consecutive sentences.
Skalla believes the court's reliance on the unproven evidence is evident by the reference that the abuse was "not a one-time thing." We disagree. The judge's statement does not "rise to the level of affirmative showing made in cases where we have vacated and remanded based on the sentencing court's reliance on unproven charges." State v. Jose, 636 N.W.2d 38, 42 (Iowa 2001). The court's statement demonstrates a legitimate reference to the multiple acts of abuse Skalla admitted to inflicting to J.F.'s head, ear, and neck on May 10, 2002. Because we find Skalla is unable to demonstrate the requisite level of prejudice to succeed in his ineffective assistance of counsel claim, we affirm the trial court's sentence.