Opinion
No. 5-171 / 04-1080.
March 31, 2005.
Appeal from the Iowa District Court for Cedar County, David E. Schoenthaler, Judge.
Russell Alloway appeals his sentences for possession of methamphetamine and possession of marijuana, in violation of Iowa Code section 124.401(5) (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Lee W. Beine, County Attorney, and Sterling L. Benz, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
Russell Alloway appeals his sentences for possession of methamphetamine and possession of marijuana, in violation of Iowa Code section 124.401(5) (2003). He contends the district court erred in failing to state on the record reasons for imposing jail terms rather than ordering probation. Alloway alternatively asserts that his counsel was ineffective. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Alloway was a passenger in a vehicle which was stopped based upon actions of the driver. The driver gave consent to search the vehicle and officers found two bags of marijuana in the vehicle on the passenger side. Alloway admitted to the officers that the marijuana, syringes, and a scale found in the vehicle belonged to him. While being booked into the jail and turning over his belongings to the officers, Alloway stated that he had additional drugs on his person. Officers found two grams of white powder in Alloway's pocket which he identified as methamphetamine.
Alloway was charged by trial information with possession of methamphetamine and possession of marijuana in violation of section 124.401(5). Alloway filed a written plea of guilty to both counts. In the written plea Alloway waived his right to be present at sentencing. Paragraph 15 of the guilty plea further stated, "I understand that the Court would normally be required to state on the record the reasons for selecting the sentence imposed and give up and waive the requirement that the Court do so."
The district court found that the Alloway's guilty pleas were made voluntarily and knowingly and accepted the pleas. Sentencing was scheduled for June 4, 2004. Although Alloway had waived his right to appear at the time of sentencing the court set a time for sentencing and ordered that he appear at that time. Alloway signed the order, acknowledging he was aware he was required to appear personally for sentencing. He failed to appear at the sentencing and a warrant was issued for his arrest.
Alloway appeared in court pursuant to the warrant on July 1, 2004, and sentencing was reset for the next day. The district court sentenced Alloway to 180 days in jail and a fine of $250 on each count. It ordered the sentences to run concurrently. The court did not state in its written sentencing orders reasons for selecting the sentences imposed. The sentencing proceeding was not transcribed.
Alloway contends the district court erred in failing to state on the record the reasons for sentencing him to jail terms on his convictions rather than ordering probation. He argues in the alternative that if error was not preserved, his counsel was ineffective for not doing so.
Alloway twice states in his appellate brief that the issue presented for our review is whether the district court "Erred in Failing to Give Reasons for Consecutive Sentences." However, based on his argument in his brief, and more importantly the fact the sentences were not ordered to run consecutively, it is clear that the actual issue on appeal is whether the district court erred in failing to give reasons for imposing jail terms rather than granting probation.
II. SCOPE AND STANDARDS OF REVIEW.
Our review of sentencing decisions is for correction of errors at law. Iowa R. App. P. 6.4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). We review for an abuse of discretion or for defects in the sentencing procedure. State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995). When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. MERITS.
Sentencing decisions of the district court are cloaked with a strong presumption in their favor. Where, as here, a defendant does not assert that the imposed sentence is outside the statutory limits, the sentence will be set aside only for an abuse of discretion. An abuse of discretion is found only when the sentencing court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.
Thomas, 547 N.W.2d at 225 (citations omitted).
As Alloway points out in his brief, the sentences imposed here by the district court were within the statutory limits. Possession of methamphetamine is punishable by a maximum term of incarceration of one year and a fine of at least $250. Iowa Code §§ 124.401(5) and 903.1(b). Possession of marijuana is punishable by a maximum term of incarceration of six months and a fine of at least $250. Id. The charges were not forcible felonies under section 702.11 and thus probation was an allowable alternative under section 907.3.
Iowa Rule of Criminal Procedure 2.23(3)( d) does require the court to state on the record its reasons for selecting a particular sentence.
When a sentence is not mandatory, the district court must exercise its discretion in determining what sentence to impose. The district court must demonstrate its exercise of discretion by stating upon the record the reasons for the particular sentence imposed. The sentencing court, however, is generally not required to give its reasons for rejecting particular sentencing options.
Thomas, 547 N.W.2d at 225 (citations omitted). However, paragraph 15 of Alloway's guilty plea specifically waived the requirement that the court state on the record its reasons for selecting the sentence imposed. In its written order accepting Alloway's guilty plea the court specifically found the guilty plea was being made voluntarily and knowingly. Alloway does not argue on appeal that his plea, or the waiver set forth therein, was not made voluntarily and knowingly. Thus, we conclude Alloway knowingly and intelligently waived the requirement that the court state on the record the reasons for selecting the sentences imposed.
The record before us consists of Alloway's written guilty pleas and waiver of rights, the order accepting the pleas and setting sentencing, the judgment and sentencing orders, and various trial court papers. The sentencing hearing was apparently not reported and thus Alloway has not provided us with a transcript of that hearing. Accordingly, we cannot determine whether at the sentencing hearing the district court stated adequate reasons for selecting the sentences it imposed or whether it did not state reasons because it accepted and relied on the waiver contained in Alloway's written guilty pleas.
"It is a defendant's obligation to provide this court with a record affirmatively disclosing the error relied upon." State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995) (citing State v. Ludwig, 305 N.W.2d 511, 513 (Iowa 1981)). A written waiver is prima facie evidence the waiver was voluntary and intelligent. See, e.g., State v. Spies, 672 N.W.2d 792, 799 (Iowa 2003) (stating a written waiver of jury trial taken in compliance with a rule of criminal procedure is prima facie evidence the waiver was voluntary and intelligent). We will not, on appeal, speculate as to what took place at the sentencing hearing. Id. We conclude that, by voluntarily failing to provide such a record, Alloway has waived error on his claim. See id.
Alloway alternatively asserts that if we find, as we now have, that error was not preserved because of the absence of a transcript of the sentencing hearing, then his counsel was ineffective for failing to request the hearing be reported. Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 193 (Iowa 2002). We prefer to leave such claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001). However, we will consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). To prove trial counsel was ineffective the defendant must show that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 620 N.W.2d 810, 814 (Iowa 1999). Here any claim and showing of prejudice to Alloway would of necessity require us to know what occurred at the sentencing hearing, which the record does not disclose. We thus conclude the record is not sufficient to address Alloway's claim.
The State argues Alloway has not made the minimal showing necessary to preserve his claim of ineffective assistance for a possible postconviction proceeding. For the reasons that follow, we agree.
To preserve claims of ineffective assistance of counsel for postconviction review, a defendant must make some minimal showing from which this court can assess the potential viability of his or her claim. Such a showing should not only demonstrate some need for further development of the record, but should indicate why the challenged actions are believed to be ineffective and what prejudice is likely to have resulted from them. The bald assertion that certain acts constitute ineffective assistance of counsel will be insufficient to preserve the question for postconviction proceedings.
State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987) (citations omitted).
In complaining about the adequacy of an attorney's representation, it is not enough to simply claim counsel should have done a better job, for example should have called a witness. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The defendant must: (1) state the specific ways in which counsel's performance was inadequate, and (2) identify how competent representation probably would have changed the outcome. Id. In the context of guilty pleas, in order to show prejudice "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. Myers, 653 N.W.2d 574, 578-79 (Iowa 2002); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995).
As noted above, Alloway asserts his counsel was ineffective for not requesting the sentencing hearing be reported. However, he does not claim his attorney was ineffective for allowing him to plead guilty or to waive the requirement that the district court state upon the record reasons for the sentences imposed. He does not contend counsel gave him any incorrect or misleading information or advice upon which he relied in pleading guilty or waiving various rights. Nor does Alloway allege how he was in any way prejudiced by counsel not requesting the sentencing hearing be reported, or by any other act or omission of counsel. Most importantly, in this context of guilty pleas Alloway does not contend he would not have pled guilty and would have insisted on going to trial but for counsel's alleged error in not having the sentencing hearing reported.
We conclude Alloway has not proved, or even asserted, that there is a reasonable probability that but for counsel's alleged error he would not have pleaded guilty and would have insisted on going to trial. His right to have the sentencing hearing reported cannot be claimed in a vacuum. See Myers, 653 N.W.2d at 578-79 (stating defendant's right of compulsory process cannot be claimed in a vacuum). Notably, Alloway does not even assert that the district court in fact did not state adequate reasons for the sentences imposed. His conclusory claim of prejudice, here not even an express claim but instead merely a claim implicit in his claim of ineffective assistance, is not a sufficient claim of prejudice. See id. at 579.
"The bald assertion that certain acts constitute ineffective assistance of counsel will be insufficient to preserve the question for postconviction proceedings." Wagner, 410 N.W.2d at 215. Alloway has provided no definitive instances of possible prejudice flowing from counsel's challenged omission, has thus raised no viable claim of ineffective assistance, and we find no basis for preserving this claim for a postconviction review. See id. His claim is also too vague and general to preserve it for a possible postconviction proceeding. See, e.g., Dunbar, 515 N.W.2d at 15.
IV. CONCLUSION.
Alloway's written guilty pleas voluntarily and knowingly waived the requirement that the district court state on the record reasons for selecting a particular sentence. He has thus waived his claim of trial court error. Alloway has raised no viable claim of ineffective assistance. Further, his claim is too vague and general to preserve it for a possible postconviction proceeding.