Opinion
No. 3-326 / 02-1405
Filed August 13, 2003
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
Defendant appeals from the judgment and sentence imposed upon his conviction for possession with intent to deliver more than five grams of cocaine base, in violation of Iowa Code section 124.401(1)(b)(3) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, John Sarcone, County Attorney, and Charles Kenville, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Victor Caldwell appeals from the judgment and sentence imposed upon his conviction for possession with intent to deliver more than five grams of cocaine base, in violation of Iowa Code section 124.401(1)(b)(3) (2001). He contends his sentence is illegal because it violates his equal protection rights. We affirm.
I. Background Facts and Proceedings. In July 2002, the State charged Victor Caldwell with possession of more than five and less than fifty grams of cocaine base with intent to deliver, failure to possess a drug stamp, possession of a firearm by a felon, and possession of marijuana. As part of a plea agreement, Caldwell pled guilty to possession of between five and fifty grams of cocaine with intent to deliver, and agreed he would be sentenced to prison. In return, the remaining counts were dismissed. The district court sentenced Caldwell to a term of imprisonment not to exceed twenty-five years and imposed the mandatory one-third minimum sentence.
Caldwell appeals, contending his sentence is illegal because it violates his equal protection rights. Pursuant to Iowa Code section 124.401(1)(b)(3), a person who possesses more than five grams but not more than fifty grams of cocaine base ("crack") with intent to deliver is guilty of a class B felony. A person possessing powder cocaine would have to possess more than five hundred grams but no more than five kilograms in order to be guilty of a class B felony. Iowa Code § 124.401(1)(b)(2)(b). Therefore, a person would have to possess one hundred times more powder cocaine than crack cocaine to be subjected to a class B felony. Caldwell argues that crack cocaine users are predominantly African-American, while powder cocaine users are predominantly Caucasian, and therefore the disparity in sentencing discriminates against him on the basis of race.
II. Error Preservation. In the district court, Caldwell argued the disparity in sentences for crack cocaine and methamphetamine violates the Iowa and Federal Equal Protection Clauses. Caldwell contends his claim is preserved because his sentence is illegal. See State v. Dann, 591 N.W.2d 635, 637 (Iowa 1999) (holding error is not waived where a defendant is challenging legality of sentence). However, the State notes Caldwell's claim is not that his sentence, imposed in full compliance with Iowa law, is illegal, but rather that the Iowa law is unconstitutional. Even error of constitutional magnitude is deemed waived if not presented to the district court. State v. Williams, 285 N.W.2d 248, 269 (Iowa 1979). Accordingly, Caldwell has not preserved this issue for our review. However, Caldwell argues in the alternative that his counsel provided effective assistance in failing to preserve error.
III. Ineffective Assistance of Counsel. We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. We can affirm on appeal if either element is lacking. Id. While we often preserve ineffective assistance of counsel claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999).
A. Essential Duty. A presumption exists that counsel is competent and that counsel's conduct falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. Karasek v. State, 310 N.W.2d 190, 192 (Iowa 1981). To warrant afinding of ineffective assistance of counsel, the circumstances must include an affirmative factual basis demonstrating counsel's inadequacy of representation. Aldape, 307 N.W.2d at 42.
The Equal Protection Clause of the United States Constitution prohibits states from denying "to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Iowa Constitution prohibits laws that "grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens." Iowa Const. art. I, § 6. We usually deem the federal and state Equal Protection Clauses to be identical in scope, import, and purpose. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 689 (Iowa 2002). Therefore, we apply the same analysis in considering federal and state equal protection claims. Id.
Iowa Code section 124.401(b) contains the same sentencing disparity as the federal statute for sentencing of powder and crack cocaine users. See 21 U.S.C. § 841(b) (2001). As the State notes, every federal circuit court has rejected challenges to the disparity in sentencing for crack and powder cocaine charges. See e.g., United States v. Lewis, 40 F.3d 1325, 1344-45 (1st Cir. 1994); United States v. Then, 56 F.3d 464, 466 (2d Cir. 1995); United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992); United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994); United States v. Galloway, 951 F.2d 64, 65-66 (5th Cir. 1992); United States v. Williams, 962 F.2d 1218, 1227-28 (6th Cir. 1992); United States v. Stowe, 100 F.3d 494, 501 (7th Cir. 1996); United States v. Woods, 270 F.3d 728, 729 (8th Cir. 2001); United States v. Coleman, 24 F.3d 37, 38 (9th Cir. 1994); United States v. Angulo-Lopez, 7 F.3d 1506, 1508-09 (10th Cir. 1993); United States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992); United States v. Cyrus, 890 F.2d 1245, 1248 (D.C. Cir. 1989). Because our state statute contains the same disparity as the federal statute, our courts analyze state equal protection claims the same as federal equal protection claims, and all federal circuits have rejected claims similar to Caldwell's, his counsel could reasonably conclude his claim would be rejected by the district court. Therefore, we conclude counsel did not fail to perform an essential duty in neglecting to raise a claim that the disparity in sentencing of powder and crack cocaine discriminates against him on the basis of race.
B. Prejudice. The second prong of the ineffective assistance of counsel test 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) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)). We likewise conclude Caldwell has failed to show he was prejudiced by his counsel's failure to present his claim to the district court.
Caldwell admits that Iowa Code section 124.401 is racially neutral on its face. However, Caldwell contends that its effect creates a disparity in the sentencing of criminal defendants based upon race. "[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870, 883 (1979). Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. Id. at 279, 99 S.Ct. at 2296, 60 L.Ed.2d at 887. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group. Id. Because Caldwell does not allege the legislature enacted the statute for a discriminatory purpose, we review the statute to see if it is rationally related to a legitimate government purpose. See Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597, 609 (1976) ("Standing alone, [disproportionate impact] does not trigger the rule . . . that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.")
We conclude section 124.401 is constitutional under a rational basis standard. Under the rational-basis standard, a statute "enjoys a presumption of constitutionality which can only be overcome by proof that the law is patently arbitrary and bears no rational relationship to a legitimate governmental interest." State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). The legislature enjoys broad discretion in defining and classifying criminal offenses so long as the classification is based on some apparent difference in situation or circumstance between the classes that establishes the necessity or propriety of distinction between them. Id. The State contends the legislature could reasonably conclude that crack cocaine poses a greater threat than powder cocaine because of the danger of widespread trade in crack due to the ease with which drug dealers can carry and conceal it and the violence that often accompanies trade in crack. The State also contends the distinction between crack and powder cocaine could reasonably be made to deter crack offenses. It notes our supreme court has recently found the increased penalties the legislature has imposed for methamphetamine use is rationally related to the State's interest in "curbing the increasing and widespread use of methamphetamine, a highly addictive drug." Id. at 202-03. The State urges the same rationale applied to the legislature's treatment of crack cocaine offenses. We concur in the State's analysis. Accordingly, Caldwell has failed to show he was prejudiced by counsel's failure to argue his equal protection claim to the district court.
Caldwell notes the Minnesota Supreme Court has held Minnesota's disparity in sentencing of powder and crack cocaine users unconstitutional under a rational basis test. See Minnesota v. Russell, 477 N.W.2d 886, 889 (Minn. 1991). However, the Minnesota rational basis test is a stricter rational basis test, requiring a reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals. Id.
Because Caldwell has failed to prove his counsel breached an essential duty by failing to arguethe disparity in sentencing of crack and powder cocaine discriminates against him on the basis of race, and because he failed to prove he was prejudiced by this failure, we affirmthe judgment and sentence imposed upon his conviction.