Opinion
No. 4-815 / 04-1104
Filed December 22, 2004
Appeal from the Iowa District Court for Mills County, Jeffrey L. Larson, Judge.
Steven Douglas Carr appeals from his convictions for two counts of sexual abuse in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, and Marci Prier, County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Defendant Steven Douglas Carr appeals from the judgment and sentences imposed following his guilty pleas to two counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(b) (2003). He claims his trial counsel was ineffective because he failed to present additional evidence or argument in mitigation of his sentence. Upon our de novo review of the record, we affirm Carr's convictions.
On May 7, 2004, the State charged Carr with three counts of sexual abuse in the second degree for sexually abusing his eight-year-old step-granddaughter on three separate occasions. Pursuant to plea negotiations with the State, Carr agreed to plead guilty to two counts of sexual abuse in the third degree (Counts II and III) with the understanding that Count I would be dismissed.
Carr appeared before a district court judge on June 15, 2004 to enter his pleas of guilty. During the plea proceedings, Carr made statements which implied that he had not had sufficient time to consult with his attorney, but then asked to plead guilty anyway because he wanted "to get it over with." The district court refused to proceed without granting Carr additional time to consider the plea offer and consult with his counsel. The court continued the plea proceedings until June 28, 2004.
Carr's trial attorney also requested that the plea proceedings be delayed.
On June 28, 2004, Carr returned to the courtroom and pled guilty to two counts of sexual abuse in the third degree pursuant to the terms of his plea agreement. At the guilty plea hearing, Carr stated two times that he wanted to be sentenced immediately, and he waived his right to a presentence investigation and report. Carr made his voluntary waiver knowing the State intended to recommend consecutives sentences.
After conducting the standard plea colloquy and accepting Carr's guilty pleas, the court heard two victim impact statements which were read by the victim-witness coordinator. The court then asked for sentencing recommendations from both parties and also asked Carr if he had anything to say prior to being sentenced:
THE COURT: Anything else from the State?
MS. PRIER: State asks that you adopt my recommendation of consecutive sentences in this matter, Your Honor.
THE COURT: Mr. Markel, do you want to be heard, or does your client want to be heard for sentencing?
MR. MARKEL: Is there anything you want to say, Steve?
THE DEFENDANT: No, Your Honor.
MR. MARKEL: Just ask you to consider concurrent time.
The district court subsequently imposed consecutive indeterminate ten-year terms. Carr appeals. He contends his trial counsel was ineffective for failing to present mitigating evidence or argument at his sentencing.
We review Carr's claim of ineffective assistance of counsel de novo. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). While we generally preserve such claims for postconviction relief proceedings, we will consider them on direct appeal when the record is adequate to address the issue. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In this case, we find the record adequate to address Carr's claim on direct appeal.
To succeed on his claim, Carr must prove (1) counsel failed to perform an essential duty and (2) prejudice resulted. State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998). The first element requires Carr to overcome a strong presumption of counsel's competence and establish counsel's conduct was outside the normal range of competency. Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995). The second element requires proof that, but for counsel's errors, the trial outcome would have been different. Wemark v. State, 602 N.W.2d 810, 817 (Iowa 1999). We may affirm on appeal if either element is lacking. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
Upon our de novo review of the record, we conclude Carr has failed to prove that he was prejudiced by his counsel's performance at sentencing. Carr's argument on appeal suggests that if his trial counsel had presented some evidence concerning Carr's personal history or offered additional argument on Carr's behalf, it would have increased the defendant's chances of receiving concurrent sentences. However, Carr fails to identify any witnesses or beneficial evidence trial counsel could have presented, and he does not explain how such information would have changed the outcome of his sentencing. Wemark v. State, 602 N.W.2d at 817. In addition, we note that Carr affirmatively waived his right to a presentence report and asked to be sentenced immediately despite being told that a presentence investigation would help the court determine an appropriate sentence. Carr also declined the court's invitation to utilize his right to allocution to make a statement in mitigation of his punishment.
Having found that Carr failed to prove the prejudice prong of his ineffective assistance of counsel claim, we affirm his convictions.