Opinion
No. 1-854 / 01-0475.
Filed March 13, 2002.
Appeal from the Iowa District Court for Union County, GREGORY A. HULSE, Judge.
The defendant appeals the judgment and sentence imposed after his guilty plea to possession of marijuana with the intent to deliver in violation of Iowa Code section 124.401(1)(d) (1999). AFFIRMED.
Eric K. Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles and Gribble, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, and Timothy R. Kenyon, County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
The defendant, Joseph Allen Trenkle, appeals from the judgment and sentence entered by the district court following his guilty plea to possession of marijuana with the intent to deliver in violation of Iowa Code section 124.401(1)(d) (1999). On appeal, Trenkle contends the State's use of rebuttal evidence at the sentencing hearing violated his due process rights as protected by the Iowa Constitution and the United States Constitution. He also claims the State violated the parties' plea agreement by: (1) recommending incarceration; (2) introducing evidence of an uncharged crime at the sentencing hearing; and (3) filing a perjury charge based on his testimony at sentencing. We affirm.
I. Background Facts and Proceedings .
Joseph Trenkle was arrested on May 23, 2000 at his residence in Creston, Iowa, following the execution of a search warrant. A search of his home resulted in the discovery of a quantity of marijuana, packaging materials, and scales. The State charged Trenkle with possession of marijuana with the intent to deliver in violation of section 124.401(1)(d).
Trenkle appeared before the court on February 6, 2001 to enter a guilty plea pursuant to a plea agreement. During the plea proceedings, Trenkle stated he understood that he was pleading guilty to a charge of possession of marijuana with the intent to deliver; however, he repeatedly provided conflicting information to the court regarding his intent to distribute the drug. At first, Trenkle insisted the marijuana discovered at his residence was purely for his personal use. He volunteered that he never sold drugs and denied ever giving marijuana to friends. He also claimed he had no intent to give drugs to anyone else.
Following an off the record discussion with his counsel, Trenkle begrudgingly admitted that "if a friend wanted some, [he] would give him some." He again volunteered that he never sold drugs. After further discussion with his attorney, Trenkle admitted he intended to use the marijuana discovered in his home himself and deliver it to any friends who might want it. In addition to Trenkle's statements, the court considered the minutes of testimony attached to the trial information in determining whether there was a factual basis for Trenkle's plea. The court accepted Trenkle's plea and set a date for sentencing.
At the outset of the sentencing hearing, the prosecutor voiced concern that information supplied by Trenkle at his plea hearing left the court with an incomplete understanding of the circumstances surrounding his offense. He indicated the State was prepared to offer brief information to the court regarding the circumstances of the event. The defendant voiced no objection and requested the opportunity to supplement the record with additional medical evidence which he believed was pertinent to the defendant's reasons for using marijuana. With no objection by the State, the court accepted the defendant's offer of his past medical records.
Trenkle was then called to the stand by his counsel and testified under oath. Initially, his testimony addressed his health problems and his reasons for using marijuana. He explained to the court he used marijuana in an attempt to alleviate the chronic pain he suffered from as the result of a serious motorcycle accident years earlier. He admitted he was addicted and expressed his desire to cease using marijuana. When questioned by his attorney, Trenkle admitted that he also made marijuana available to people he knew. This testimony was clearly offered to present mitigating evidence and to convince the court to grant probation.
During the State's cross-examination, Trenkle was questioned about his distribution practices. The prosecutor asked whether he ever sold marijuana for profit. Trenkle answered that he had not. Following an off the record discussion with his counsel, Trenkle changed his testimony during redirect examination. He admitted that over the past eight years he had sold $25 worth of marijuana to people he knew on three different occasions. After Trenkle denied involvement in any larger transactions during recross-examination, the State questioned him specifically about the $720 in cash found on his person at the time he was arrested. Trenkle denied the money had anything to do with selling marijuana. Instead, he testified the cash was a loan from his mother.
The State then called a narcotics enforcement officer to the stand. He testified that on the date of Trenkle's arrest, a confidential informant had purchased nearly half a pound of marijuana from the defendant. The officer also testified the serial numbers on the seven one hundred dollar bills found in Trenkle's pocket matched the serial numbers on the bills used by the informant to purchase marijuana.
The district court rejected Trenkle's request for probation and sentenced him to an indeterminate term of five years. Trenkle appealed.
II. Due Process Claim .
Trenkle first contends the State's use of rebuttal evidence to impeach his credibility at sentencing violated his right to due process. We first address the State's contention the defendant failed to preserve error on the due process issue. Generally, issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997).
The defendant's brief fails to state how error was preserved on this issue. Iowa R. App. P. 6.14(1)(e). Moreover, the record reveals Trenkle made no objection to the introduction of the State's rebuttal evidence at the sentencing hearing. We may not consider an issue raised for the first time on appeal, even if it is of constitutional dimension. State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994). Because error was not preserved, we reject this assignment of error.
Formerly Iowa R. App. P. 14(a)(5).
III. Breach of Plea Agreement Claims .
Trenkle claims the State breached his plea agreement in three ways: first, by recommending incarceration; second, by introducing evidence of an uncharged crime at the sentencing hearing; and third, by charging him with perjury based on his testimony at sentencing. The State contends these claims should be waived because the defendant failed to object to any evidence or arguments presented during the sentencing hearing.
We conclude Trenkle's first two claims of breach were not preserved for review at his sentencing hearing. Trenkle's brief fails to state how error was preserved for appellate review as to either of these claims. Iowa R. App. P. 6.14(1)(e). The record reveals he did not raise any objections regarding these issues at sentencing and made no request to withdraw his guilty plea. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999). As a result, the sentencing court had no opportunity to address the issues Trenkle now raises on appeal. Because error was not preserved, we reject these assignments of error.
Trenkle's last claim is that the State breached his plea agreement by filing a perjury charge against him based on his testimony at the sentencing hearing. The plea record reveals that in exchange for the defendant's guilty plea, the State agreed not to charge him with other offenses arising from its investigation, such as delivery of marijuana, and a tax stamp violation. Trenkle argues the perjury charge breaks the State's promise not to file further charges arising from the circumstances supporting his plea. We disagree. The prosecutor's promise not to file additional charges based on "evidence that may have come from this investigation to date," cannot reasonably be interpreted to include a promise to ignore future false statements of material fact made under oath to influence a sentencing decision . Cf. State v Hawkins, 620 N.W.2d 256, 257 (Iowa 2000). We reject the defendant's claim for relief based on the perjury charge.
We affirm the trial court's judgment and sentence in its entirety.
AFFIRMED.