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State v. Browning

Court of Appeals of Iowa
Feb 6, 2002
No. 1-644 / 00-1706 (Iowa Ct. App. Feb. 6, 2002)

Opinion

No. 1-644 / 00-1706.

Filed February 6, 2002.

Appeal from the Iowa District Court for Dallas County, GARY G. KIMES (plea) and GREGORY A. HULSE (sentencing), Judges.

Defendant appeals from the judgment and sentence entered upon his guilty plea to possession with intent to deliver marijuana in violation of Iowa Code section 124.401(1)(d) (Supp. 1999). AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, Wayne Reisetter, County Attorney, and Jeannine R. Gilmore, Assistant County Attorney, for appellee.

Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.


The defendant, Rock Browning, appeals his conviction and sentence following his guilty plea to the charge of possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d) (Supp. 1999). Browning argues his trial counsel was ineffective in (1) permitting him to plead guilty to the possession charge despite the lack of a factual basis for the plea, and (2) failing to file a motion in arrest of judgment. Browning also asserts the sentencing court considered impermissible factors in sentencing him to an indeterminate term of imprisonment not to exceed five years. We affirm.

I. BACKGROUND FACTS.

On May 6, 2000, Waukee police officers stopped Michael Miller for operating while intoxicated. A police search of Miller's vehicle revealed a large amount of cash, drugs and drug paraphernalia. Miller admitted to police the drugs were for sale. As a result, the police obtained a search warrant for his residence in Woodward, Iowa.

Browning, Miller's roommate, was present at Miller's home during the police search. After being given his Miranda rights, Browning admitted to police that he used illicit drugs and that he used them quite frequently in the home. Browning informed police he did not purchase his drugs from Miller, but refused to reveal his sources. Browning was subsequently arrested and charged by trial information with (1) possession of marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (subject to the weapons enhancement provision of section 124.401(1)(e)), (2) prohibited acts, in violation of section 124.402(1)(e), and (3) failure to affix a drug tax stamp, in violation of sections 453B.1, 453B.3, 453B.4, and 453B.12.

Browning initially pleaded not guilty to the charges, but eventually entered a guilty plea to possession of marijuana with intent to deliver. The State dismissed the other charges, and the district court sentenced Browning to an indeterminate term of imprisonment not to exceed five years and ordered that his driver's license be revoked for 180 days. Browning has appealed.

II. INEFFECTIVE ASSISTANCE.

Browning asserts his trial counsel was ineffective in (1) permitting him to plead guilty to the charge of possession of marijuana with intent to deliver because there was no factual basis for the plea, and (2) failing to challenge the plea by filing a motion in arrest of judgment.

Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The defendant must show that performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Id. at 688, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693. There is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both of the two elements of an ineffective assistance claim. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).

"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." Wemark, 602 N.W.2d at 814. A defendant is not entitled to perfect representation, but rather only that which is within the normal range of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).

While generally we preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). We find this record adequate to address Browning's claims.

An ineffective assistance claim may be disposed of if the defendant fails to prove either of the two prongs of such claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). We need not determine whether counsel's performance is deficient before undertaking the prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice, the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Browning first claims trial counsel was ineffective in permitting him to plead guilty to the charge of possession of marijuana with intent to deliver because there was no factual basis for the plea. We find no merit to this argument.

It is axiomatic that a trial court may not accept a guilty plea without first determining that the plea has a factual basis and that basis must be disclosed by the record. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). We determine whether a factual basis exists for the guilty plea based on the entire record before the district court at the guilty plea hearing. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). The record to support a factual basis for a guilty plea includes the minutes of testimony and statements made by the defendant and the prosecutor at the guilty plea proceeding. Keene, 630 N.W.2d at 581. The record as a whole must disclose facts to satisfy the elements of the crime. Id.

We will find counsel has failed to perform an essential duty if he or she allowed the defendant to plead guilty to a charge for which no factual basis exists and thereafter fails to file a motion in arrest of judgment challenging the plea. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Prejudice, in such a case, is inherent. Keene, 630 N.W.2d at 581.

Browning argues there was no factual basis for his guilty plea because the district court failed to establish that he possessed " at least fifty kilograms of marijuana." We conclude that, as acknowledged by Browning in his reply brief, he has misread section 124.401(1)(d). That section specifically provides that it is a class "D" felony for anyone to manufacture, deliver, or possess with intent to manufacture or deliver "fifty kilograms or less of marijuana. . . ." Iowa Code § 124.401(1)(d) (emphasis added). Based on the clear wording of the statute, Browning's assertion that the district court was required to determine he possessed at least fifty kilograms of marijuana is misplaced. Section 124.401(1)(d) establishes a maximum amount of marijuana one can possess and be found guilty of a class "D" felony of possession with intent to deliver, but does not establish a minimum amount.

At the plea proceeding, Browning admitted that he possessed marijuana and that is was under his control. He admitted the marijuana was in his home and that he knew it was an illegal substance. Although he maintained he did not intend to deliver the marijuana, he admitted that he intended to share it with someone else, and had done so in the past. Our courts have recognized that one who shares drugs with others has transferred the drugs within the meaning of statutes prohibiting the distribution, furnishing, or delivery of controlled substances. State v. Moore, 529 N.W.2d 264, 266 (Iowa 1995). Based on these admissions, we believe there was a factual basis for Browning's guilty plea to a violation of section 124.401(1)(d). Trial counsel was therefore not ineffective in permitting him to enter the guilty plea or by failing to file a motion in arrest of judgment.

In his reply brief, Browning for the first time raises the issue that trial counsel was ineffective in failing to argue that the record supported a charge of an accommodation offense under section 124.410 rather than an offense under section 124.401(1)(d). Browning had ample opportunity to frame all pertinent issues in his brief on appeal. We will not consider new issues raised for the first time in a reply brief. Polk County v. Davis, 525 N.W.2d 434, 435 (Iowa Ct. App. 1994).

III. SENTENCING.

Browning also argues the district court erred in considering the fact there were firearms found in the home in sentencing him to an indeterminate five-year prison term. His claim is based on the district court's statement at sentencing that in addition to Browning's age, family circumstances, and previous criminal record, it was noting the fact weapons were found in his bedroom. He contends that although he was initially charged with the firearm enhancement provision of section 124.401(1)(e), that charge was later dismissed, and that the district court should not have considered these unproven facts and unprosecuted charge at sentencing.

In determining an appropriate sentence, the district court may look to the facts and circumstances surrounding the crime. State v. LeGrand, 501 N.W.2d 56, 63-64 (Iowa Ct. App. 1993). A sentencing court may not consider an unproven or unprosecuted offense when sentencing a defendant unless (1) the facts before the court show the accused committed the offense, or (2) the defendant admits it. State v. Messer, 306 N.W.2d 731, 732-33 (Iowa 1981). When a challenge is made to a criminal sentence on the basis that the court improperly considered unproven criminal activity, the issue presented is simply one of the sufficiency of the record to establish the matters relied on. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). If the court uses any improper consideration in imposing sentence, resentencing of the defendant is required. Id.

Browning's presentence investigation report established that he possessed weapons at the time of his arrest. The presentence investigation report incorporated all relevant court and arrest documents, including the police complaints and reports. The complaint notes that several firearms and rounds of ammunition were found in Browning's home, including his bedroom. The minutes of testimony indicated that Officer Shawn Popp would testify that during the search of Miller's home he found firearms in Browning's bedroom, and that Browning admitted to him that there were .22 caliber rifles in the home.

Browning was provided an opportunity to review the presentence investigation report with his counsel and make any necessary corrections to the information contained therein. Browning pointed out several inconsistencies in the presentence investigation report but raised no objection to the inclusion of the weapons as part of the information contained therein. In determining a defendant's sentence, the district court is free to consider portions of the presentence investigation report that are not challenged by the defendant. Grandberry, 619 N.W.2d at 402. Because Browning did not challenge the inclusion of the weapons found in the home as part of the information contained in the presentence investigation report, the district court was free to consider it.

We have considered all issues presented and conclude that Browning's conviction and sentence should be affirmed.

AFFIRMED.


Summaries of

State v. Browning

Court of Appeals of Iowa
Feb 6, 2002
No. 1-644 / 00-1706 (Iowa Ct. App. Feb. 6, 2002)
Case details for

State v. Browning

Case Details

Full title:STATE OF IOWA, Plaintiff-Appellee, v. ROCK W. BROWNING, Defendant-Appellant

Court:Court of Appeals of Iowa

Date published: Feb 6, 2002

Citations

No. 1-644 / 00-1706 (Iowa Ct. App. Feb. 6, 2002)