Opinion
No. 3-375 / 02-0744
Filed August 13, 2003
Appeal from the Iowa District Court forScottCounty, David E. Schoenthaler, Judge.
Napoleon Hartsfield appeals his convictions and sentences, following a bench trial, for possession of crack cocaine with intent to deliver and failure to affix a drug tax stamp. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Napoleon Hartsfield, Fort Madison, for appellant pro se.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Napoleon Hartsfield appeals his convictions and sentences, following a bench trial, for possession of crack cocaine with intent to deliver and failure to affix a drug tax stamp. Hartsfield contends (1) there was insufficient evidence to support either the drug tax stamp conviction or the possession with intent to deliver conviction, (2) Iowa Rule of Appellate Procedure 6.13(2) and the "copying fee" policy of the state appellate defender's office are unconstitutional, (3) the trial court abused its discretion in imposing restitution, and (4) trial counsel was ineffective in several ways. We affirm in part, reverse in part, and remand for entry of judgment of acquittal on Count II.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record before us reveals the following facts. While on routine patrol at approximately 8:00 p.m. on September 4, 2001, Davenport Police Officers Brown and Welke saw Hartsfield driving a Cadillac with no front plates. The officers knew Hartsfield from previous encounters with him and were aware he did not have a driver's license. The officers turned around and followed Hartsfield in order to perform a traffic stop, at which time they noticed there was a female in the front passenger seat with him. A traffic stop became unnecessary when Hartsfield stopped and parked the vehicle in front of an apartment building. Hartsfield got out of the car and walked quickly into the apartment building.
The officers pulled into a nearby alley and Officer Brown entered the front door of the apartment building while Officer Welke went to the back door. After entering the front door of the apartment building Officer Brown observed Hartsfield walk towards the back door. When Hartsfield got to the area of a banister near a cubbyhole, Officer Brown saw his right arm come outward toward the cubbyhole and saw him open up his fingers as he made a throwing motion to the right side. However, Brown did not hear anything hit the floor or see anything leave Hartsfield's hand. Hartsfield then immediately turned around and began walking toward the front of the building and met Officer Brown. When Brown asked him what he was doing, Hartsfield replied that he was trying to find someone to drive his car and was going upstairs to get someone. Brown asked him why he was driving without a license and Hartsfield stated he was aware he was doing so and was at the apartment building to find someone else to drive.
Based on Hartsfield's suspicious behavior Brown decided at that point to do a pat down search for officer safety purposes. Officer Welke entered the building while Brown was conducting the pat down search. Brown found no weapons on Hartsfield. Welke then went outside to Hartsfield's vehicle. After doing the pat down search, Officer Brown quickly looked at the area around the cubbyhole where Hartsfield had made the throwing motion. He noticed garbage and debris but did not at that time see any contraband. However, he testified he did not feel comfortable doing a thorough search of the area at that point because his back had to be turned toward Hartsfield. Brown then took Hartsfield to the squad car.
Prior to placing him in the squad car Brown searched Hartsfield again and asked him to take off his shoes. As Hartsfield took off his shoes $446 fell out of one of the shoes. Brown testified that when he asked Hartsfield where he got the money Hartsfield told Brown he was a "good hustler."
After placing Hartsfield in the squad car Officer Brown went back into the apartment building. He did not see anyone or hear any noise from the upper floors. Brown went back to search the area where Hartsfield had made the throwing motion and found six individually wrapped rocks of crack cocaine by the banister. The bags in which the crack was wrapped were wet. Brown then went back to the squad car, showed Hartsfield the crack, and read him the Miranda warnings which Hartsfield indicated he understood. Brown then asked Hartsfield if the rocks of crack were his. Hartsfield initially denied they were his, but when asked a second time stated they were his and he was going to take his girlfriend to the motel and smoke them. When asked why the bags were wet Hartsfield stated he had them in his mouth. Brown also testified that Hartsfield told him the money in his shoe was from selling crack. Hartsfield apparently explained to Brown that he would obtain money from a buyer, buy crack from a seller, and then deliver the crack to the buyer, skimming off one-half of the money for himself.
While Officer Brown was dealing with Hartsfield, Officer Welke spoke with the passenger in Hartsfield's car. He discovered the passenger was an eighteen-year-old female with an open container of alcohol. After searching the car, Welke discovered a glass pipe, a piece of steel wool, and a small rock of crack cocaine under the arm rest of the car toward the driver's side of the vehicle. It was later determined the rock of crack found in the car weighed .07 of a gram. Welke stated he did not arrest the woman because she seemed unaware that the paraphernalia and crack were in the car.
Hartsfield was charged by trial information with possession of crack cocaine with intent to deliver (Count I), in violation of Iowa Code sections 124.401(1)(c)(3), 124.206(2)(d) and 703.1 (2001), failure to affix a drug tax stamp (Count II), in violation of Iowa Code sections 453B.1(3)(d), 453B.12 and 703.1, possession of drug paraphernalia (Count III), in violation of section 124.414(2) and (3), and failure to have a valid driver's license (Count IV), in violation of section 321.174. The State later amended Counts I and II of the trial information to charge Hartsfield as an habitual offender under section 902.8.
Jury trial was held on Counts I through III, the State having dismissed Count IV. During trial Hartsfield moved for mistrial because the forfeiture proceedings involving the money found on him at the time of his arrest were not properly conducted and the jury had heard evidence of the forfeiture. The State concurred in Hartsfield's motion and the court granted the motion for mistrial. A second jury trial resulted in a hung jury and a second mistrial.
A third jury trial commenced. After the jury was selected and sworn in Hartsfield requested a bench trial instead and signed a written waiver of his right to jury trial. The State consented to his waiver of jury trial and the case proceeded as a bench trial. At the close of the State's evidence Hartsfield moved for a judgment of acquittal on Counts I and II. He also conceded that there was sufficient evidence to prove he possessed drug paraphernalia (Count III) and possessed the .07 gram rock of crack cocaine. However, he argued there was insufficient evidence to prove he possessed with intent to deliver the six rocks of crack that were found in the apartment building, as there was insufficient evidence to establish his dominion and control of them. The court denied the motion.
Following trial the trial court issued on the record its findings of fact, conclusions of law, and verdicts. The court found Hartsfield guilty on all three counts tried to the court. Bench trial on Hartsfield's habitual offender status commenced shortly after the court read the verdict. Hartsfield became disruptive during the proceedings and voluntarily waived his presence for the remainder of the hearing. The court found Hartsfield was an habitual offender for sentencing purposes.
At a sentencing hearing the court sentenced Hartsfield to a term of incarceration not to exceed fifteen years on the possession with intent to deliver charge (Count I), including the mandatory minimum sentence pursuant to section 124.413. Hartsfield was also fined $1000 plus a $10 D.A.R.E. surcharge on Count I. The court imposed a term of incarceration not to exceed fifteen years, a $1000 fine, and a $10 D.A.R.E. surcharge on the drug tax stamp violation (Count II), and sentenced Hartsfield to a thirty-day term on the possession of drug paraphernalia charge (Count III). The court ordered these terms of incarceration to run concurrently with one another, but consecutively to sentences imposed in three other cases not at issue here.
II. MERITS.
Hartsfield appeals from this judgment and sentence through both appellate counsel and a pro se supplemental brief. In appellate counsel's brief Hartsfield contends there was insufficient evidence to support his conviction for failure to affix a drug tax stamp. Hartsfield's pro se brief alleges (1) Iowa Rule of Appellate Procedure 6.13(2) and the state appellate defender's "copying policy" violate his due process, equal protection, and "access to the courts" rights under the state and federal constitutions, (2) there was insufficient evidence to convict him of possession of crack cocaine with intent to deliver, and (3) the court abused its discretion in ordering restitution. Hartsfield's pro se brief also alleges several grounds of ineffective assistance of trial counsel. We address these issues separately.
A. Sufficiency of the Evidence.
The standard of review in a challenge to the sufficiency of the evidence is well established. State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995). We will uphold a verdict where substantial evidence in the record tends to support the charge. Id. A trial court's finding of guilt is binding on appeal if supported by substantial evidence. Iowa R.App.P. 6.14(6)( a); State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
In a criminal case tried to the court, as in a civil case tried to the court at law, the court's verdict is like a jury verdict. Upon review of the sufficiency of evidence to support the verdict, we view the evidence in the light most favorable to the verdict, and we accept as established all reasonable inferences tending to support it. Findings of the trial court are to be broadly and liberally construed, rather than narrowly or technically, and, in case of ambiguity, we will construe findings to uphold, rather than defeat, the judgment. Direct and circumstantial evidence are equally probative so long as the evidence raises a fair inference of guilt and [does] more than create speculation, suspicion, or conjecture. It is necessary to consider all the evidence in the record and not just the evidence supporting the verdict to determine whether there is substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational factfinder that the defendant is guilty beyond a reasonable doubt.
Dible, 538 N.W.2d at 270 (internal quotations and citations omitted).
1. Drug tax stamp.
Iowa Code chapter 453B (2001) governs the taxation of controlled substances. Section 453B.3 provides that "A dealer shall not possess, distribute, or offer to sell a taxable substance unless the tax imposed under this chapter has been paid as evidenced by a stamp, label, or other official indicia permanently affixed to the taxable substance." Section 453B.1(3) defines "dealer" as follows:
3. " Dealer" means any person who ships, transports, or imports into this state or acquires, purchases, possesses, manufactures, or produces in this state any of the following:
a. Seven or more grams of a taxable substances other than marijuana, but including a taxable substance that is a mixture of marijuana and other taxable substances.
b. Forty-two and one-half grams or more of processed marijuana or of a substance consisting of or containing marijuana.c. One or more unprocessed marijuana plants.
d. Ten or more dosage units of a taxable substance which is not sold by weight.
"Dosage unit" is defined as "the unit of measurement in which a substance is dispensed to the ultimate user. Dosage unit includes, but is not limited to, one pill, one capsule, or one microdot." Iowa Code § 453B.1(6). The State charged Hartsfield under section 453B.1(3)( d). Furthermore, it is clear none of the other three paragraphs of subsection 453.B.1(3) could even arguably apply, as the crack cocaine rocks weighed a total of 2.16 grams and no marijuana is involved. Accordingly, it was the State's contention and its burden to prove at trial that Hartsfield was in possession of " ten or more dosage units of a taxable substance which is not sold by weight" (here crack cocaine) in order to prove Hartsfield was a "dealer" and thus in violation of the drug tax stamp statute. Iowa Code § 453B.1(3)( d) (emphasis added).
A total of seven rocks of crack were found in this case, six in the apartment building and one in Hartsfield's car. Hartsfield argues there was insufficient evidence to find he had violated the drug tax stamp statute because under the facts of this case the individual rocks must be the "dosage units" and he thus does not meet the definition of a dealer under section 453B.1(3)( d) because he possessed less than the required ten dosage units.
Hartsfield contends the smaller rock in his car is not subject to the drug tax stamp statute because it was only for personal use. However, even assuming the smaller rock was in fact only for personal use, there is no exemption in chapter 453B simply because the controlled substance is only for personal use. It is a defendant's status as a "dealer" under the statutory definition that determines if a drug tax stamp is necessary, not the intended use of the drugs. Therefore, we consider the total quantity of drugs in this case to be seven rocks for purposes of the drug tax stamp charge.
The State argues that multiple "dosage units" may be found in a single rock of crack and limiting the definition of dosage unit to a single rock of crack would defeat the legislative intent of the statute to tax drug dealers. The record shows that each of the seven rocks here weighed between .07 grams and .52 grams, with a total weight of 2.16 grams. The State contends that .1 grams of crack cocaine equals one "dosage unit" for purposes of this statute. In support of its argument the State relies on the officers' testimony at trial that during training they were told the Iowa Department of Revenue and Finance has set .1 grams as a dosage unit of crack cocaine. Accordingly, the State asserts one gram of crack can be broken down into approximately ten "dosage units." Based on this definition of "dosage unit" the State argues Hartsfield meets the definition of a "dealer" under the drug tax stamp statute because he possessed over ten dosage units of crack cocaine.
The officers testified at trial that street dealers typically sell crack cocaine in $20 and $50 rocks, and that generally $20 rocks are between .07 and .2 grams while $50 rocks are between .2 and .5 grams. Thus, the rocks possessed by Hartsfield, weighing between .07 and .52 grams, can all be classified as either $20 or $50 rocks. The officers also testified, as the State asserts, that they were told the Iowa Department of Revenue and Finance considers one "dosage unit" of crack cocaine for purposes of the drug tax stamp statute to be .1 grams. Thus, one gram would constitute ten "dosage units" and meet the threshold requirement for requiring a drug tax stamp. The officers further testified that the six rocks of crack found in the apartment building were packaged in the typical manner to be sold as individual rocks, ready to be dispensed to the ultimate consumer on the street. They stated they believed the crack appeared to be packaged and ready for such delivery rather than being for Hartsfield's personal use.
The State's charge against Hartsfield and its arguments on appeal assert that crack cocaine is dispensed to the ultimate user in dosage units rather than by weight. Without so deciding, we will assume the State's position on this question is correct.
Despite the fact the department of revenue and finance apparently takes the position that .1 grams of crack cocaine is a "dosage unit," the term "dosage unit" is not defined as .1 grams anywhere in Iowa Code chapter 453B or in the rules adopted by the director pursuant to Iowa Code section 453B.2. In fact, Chapter 453B specifically defines "dosage unit" as the unit of measure in which a substance is dispensed to the ultimate user. In determining what the legislature intended in adopting a statute, the court is constrained to follow the express terms of the statute. State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). We do not speculate as to the probable legislative intent apart from the words used in the statute, State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996), and we resort to rules of statutory construction only when a statute is ambiguous. State v. Gilmour, 522 N.W.2d 595, 597 (Iowa 1994). Furthermore, statutes that are penal in nature are to be strictly construed, with any doubt resolved against the State and in favor of the accused. Byers, 456 N.W.2d at 919.
We find that chapter 453B is clear and unambiguous as to the proper definition of a dosage unit. A "dosage unit" is the unit of measurement in which a substance is dispensed to the ultimate user. Iowa Code § 453B.1(6). Defining a "dosage unit" of crack cocaine as .1 grams, a measure of weight, is contrary to the plain language of the statute under which Hartsfield was charged, which applies to taxable substances "not sold by weight."
The officers testified at trial that crack cocaine is typically sold on the street in $20 and $50 rocks and packaged for sale in tied off corners of plastic baggies. They further testified the rocks here all appeared to be of sizes in which crack cocaine is dispensed to the ultimate user, and to be packaged for delivery rather than for personal use. All of the rocks found here were the typical $20 and $50 rocks and were packaged in a manner for sale to the ultimate user, directly in line with the officers' expert testimony regarding how rocks were packaged to be dispensed to the ultimate user. Accordingly, based on the evidence in the record and the clear definition of "dosage unit" in section 453B.1(6), we find a "dosage unit" must be defined as the unit of measurement in which the substance is dispensed to the ultimate user, here either $20 or $50 individual rocks of crack cocaine. Because Hartsfield possessed only seven individual rocks of crack cocaine he possessed only seven "dosage units" of the taxable substance and thus does not fit under the definition of a "dealer" found in section 453B.1(3)( d). Therefore, there was insufficient evidence to find him in violation of the drug tax stamp statute.
This testimony is in fact the evidence the State relied on in seeking and securing the conviction for possession with intent to deliver discussed below.
The State attempts to argue that one rock of crack cocaine may contain multiple dosages and thus multiple "dosage units" may be contained within a single rock. However, the State then appears to argue against its own contention when it points out that the varying consumption of users based on the level of their addiction does not affect the meaning of a "dosage unit" under the clear definition of this term in section 453B.1(6). The statute expressly states that a "dosage unit" is the unit of measurement in which a substance is dispensed. The State concedes in its brief that crack is dispensed in rocks. The fact some users may smoke the entire rock at once while others, depending on the size of the rock and the level of their addiction may attempt to break it into smaller rocks, does not change the fact that all of the evidence here compels a finding that crack is generally dispensed to the ultimate user in $20 to $50 rocks.
By way of contrast, in an unpublished opinion of this court in which testimony also indicated crack cocaine is sold in the form of small rocks, a police officer testified the size of a rock someone would normally ingest was an eighth to a quarter inch square, with the normal yield being ten rocks per gram of crack cocaine, and the large (2.39 grams) rock in that case was not a standard measure for sale. See State v. Rumley, No. 98-1651 (Iowa Ct.App. Nov. 10, 1999).
Furthermore, if the State is attempting to argue that the total weight of the crack, 2.16 grams, shows that Hartsfield possessed approximately twenty-one "dosage units" of crack, we find this argument to be contrary to the statutory definition as well. Section 453B.1(3)( d), under which the State charged Hartsfield, specifically defines a dealer as someone possessing ten or more dosage units not sold by weight. By charging Hartsfield under this subsection the State is not only in effect conceding the taxable substance here is not sold by weight, but is in fact asserting it is not sold by weight in order to apply section 453B.1(3)( d). Under this provision and the evidentiary record in this case the combined weight of all the rocks or "dosage units" is irrelevant.
The evidence shows that all seven rocks are of sizes in which crack is dispensed to the ultimate user. We thus need not and do not consider a situation where there are less than ten rocks but they include a sufficient number larger than generally dispensed to the ultimate user that if those larger rocks were divided the result would be ten or more rocks of sizes generally dispensed to the ultimate user.
Finally, the examples of dosage units given in the statute are pills, capsules, and microdots. Iowa Code § 453B.1(6). We believe that the rocks of crack cocaine in this case are closely similar to the other examples of "dosage units" given in the statute. We thus conclude that defining a "dosage unit" of crack as a rock of cocaine of a size generally dispensed to the ultimate user is in line with the legislative intent.
The evidence shows that all seven rocks are of sizes in which crack is dispensed to the ultimate user. We thus need not and do not consider a situation where there are less than ten rocks but they include a sufficient number larger than generally dispensed to the ultimate user that if those larger rocks were divided the result would be ten or more rocks of sizes generally dispensed to the ultimate user.
In summary, we assume without so deciding that, as asserted by the State in order to bring Hartsfield within section 453B.1(3)( d), crack cocaine is not sold by weight; Hartsfield possessed seven rocks of crack cocaine; each of the rocks is of a size typically and generally dispensed to the ultimate user; each of the seven rocks therefore constitutes a dosage unit, and Hartsfield did not possess ten or more dosage units.
For all of the reasons set forth above, we conclude there is insufficient evidence to prove that Hartsfield possessed the ten or more dosage units of crack cocaine which would require a drug tax stamp under sections 453B.1(3)( d), 453B.1(6), and 453B.3. Accordingly, there is insufficient evidence in the record to support his conviction under Count II for failure to affix a drug tax stamp. The conviction must be reversed and the case remanded for entry of judgment of acquittal on Count II.
2. Possession with intent to deliver.
Hartsfield also contends there was insufficient evidence to convict him of possession with intent to deliver. Specifically, he challenges the intent to deliver element of the conviction and maintains he possessed the crack only for personal use because of his crack addiction and he was not intending to sell it. To prove Hartsfield possessed the crack cocaine with the intent to deliver the State had to establish that he (1) knowingly possessed crack cocaine on the day in question, (2) knew the substance was crack cocaine, and (3) possessed the substance with the intent to deliver such substance. SeeIowa Code § 124.401(1).
The trial court found there was considerable evidence which proved the six rocks found by the officers in the apartment building belonged to Hartsfield and were intended for delivery to third persons rather than for his own personal use. Based on all of the facts set forth above, we agree with the trial court and conclude there is substantial evidence in the record to support the court's finding that Hartsfield possessed the six rocks of crack cocaine with the intent to deliver those rocks to a third person. In particular the following evidence supports the trial court's substantial evidence finding.
Hartsfield's reaction after the officers drove by him and turned around is suspect and indicated a concern about law enforcement presence. When the officers turned around, Hartsfield immediately pulled his car over, exited the vehicle, and walked quickly into an apartment building while looking over his shoulder. Once in the building Officer Brown saw Hartsfield make a throwing motion toward an area where the six wet, individually packaged rocks were found shortly thereafter. Hartsfield then immediately headed for the front of the building, giving no good or rational explanation for being in the building. Not only did Hartsfield make furtive movements, $446 fell out of his shoe when he was being searched by the police. Officer Brown testified that Hartsfield told him he obtained the money from being a "good hustler" and went on to explain how he would get the money from a buyer, buy the crack from a seller, deliver the crack to the buyer, and then keep half of the money from the transaction for himself, and that he had completed several such transactions that night. Hartsfield also eventually admitted the crack was his and that it was wet because he had it in his mouth.
More specifically with regard to the intent to deliver element, as mentioned above the officers testified that the rocks of crack were individually packed in a form ready to be sold to a third person and appeared to be ready for delivery rather than for personal use. The officers also testified that they generally do not find multiple rocks on users, only dealers, because users will generally smoke the rocks as soon as they purchase them rather than accumulate them. In addition, the six individually packaged rocks were not found with the small, single rock and paraphernalia in Hartsfield's vehicle. Finally, we agree with the district court's determination that Hartsfield's testimony and version of the events is not as credible as the officers' testimony.
Substantial evidence supports the trial court's finding of guilt on Count I. A rational factfinder could find Hartsfield guilty beyond a reasonable doubt of possession of crack cocaine with the intent to deliver it to a third person. The verdict on this count is affirmed.
B. Rule of Criminal Procedure 6.13(2).
Hartsfield contends in his pro se brief as follows, "Iowa Court Rule 6.13(2) and State Appellate Defender's Policies of Not Supplying Pro Se Defendants with Copies of the Trial and Sentencing Transcripts Violates Defendants Rights to Due Process, Equal Protection and Access to the Courts Under the State and United States Constitution." To the extent Hartsfield's challenge rests on statutory grounds, our scope of review is for corrections of errors at law, State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996), and to the extent the challenge is constitutional in nature our review is de novo. Id.
Hartsfield argues he could not pay the five cent per page fee the appellate defender charges for copies of transcripts and without the transcripts he was unable to identify issues for appeal. He is apparently contending the transcripts should have been provided to him at no cost and the fact they were not violated his constitutional rights. More specifically, Hartsfield contends that the policy of denying him (as an incarcerated pro se defendant) free copies of his transcripts to support his pro se brief and the fact rule of appellate procedure 6.13(2) does not require free transcripts be provided to such pro se defendants is a "direct violation of [his] constitutional rights to file issues that [his] Appellant [sic] attorney didn't or wouldn't raise."
Hartsfield also attempts to argue this rule is unconstitutional because it does not allow for extensions of time for pro se defendants to file a brief. However, rule of appellate procedure 6.20 expressly allows an appellant to file a motion for such an extension of time and thus this argument is without merit.
We agree with the State that this issue appears to be moot. A moot case is one that no longer presents a justiciable controversy because the issues involved have become academic or nonexistent. Martin-Trigona v. Baxter, 435 N.W.2d 744, 745 (Iowa 1989). "This court will generally dismiss an appeal `when judgment, if rendered, will have no practical legal effect upon the existing controversy.'" Christensen v. Iowa Dist. Court, 578 N.W.2d 675, 679 (Iowa 1998) (quoting Roth v. Reagen, 422 N.W.2d 464, 466 (Iowa 1988)). Here, Hartsfield successfully complied with the rule he challenges. He was able to file a pro se brief and reply brief in which he cited to and provided the court with the majority of the relevant portions of the transcripts of his various proceedings below, despite the challenged "copying policy." In addition, he has been able to have the merits of his claims in his pro se brief considered by this court. Accordingly, we believe any judgment by us at this time regarding the constitutionality of the appellate defender's "copying policy" or rule 6.13(2) would have no practical legal effect on Hartsfield as he has already successfully done what he alleges the rule and policy would not allow him to do. We decline to address this moot issue.
C. Restitution.
Hartsfield next claims the district court abused its discretion in imposing restitution. He contends the court did not consider his ability to pay, did not exercise its discretion in ordering restitution, and denied him his request for a restitution hearing pursuant to section 910.7. He also challenges a purported plan of restitution and a purported restitution plan of payment, and argues the fact he was not allowed to perform community service constitutes a violation of his right to equal protection.
Restitution is to be ordered in all criminal cases in which the defendant pleads guilty or is found guilty. Iowa Code § 910.2. Our review of restitution orders is for correction of errors at law. State v. Watts, 587 N.W.2d 750, 751 (Iowa 1998); State v. Lessner, 626 N.W.2d 869, 870 (Iowa Ct.App. 2001). Restitution orders will be reversed only for a demonstrated abuse of discretion. State v. Bradley, 637 N.W.2d 206, 210 (Iowa Ct.App. 2001).
Although Hartsfield refers in his pro se brief to a "department of corrections restitution plan," asserts he "requested a restitution hearing pursuant to Iowa Code section 910.7," and refers to an "order in this case denying the defendant a hearing," there is no evidence in the record before us of any of these documents or proceedings. There is nothing regarding a request for a restitution hearing, a transcript of such a hearing, an order resulting from such a hearing, or any order denying a request for such a hearing. There is also no evidence in the record of any restitution plan of payment prepared by the department of corrections. The only reference in the record to restitution is in the trial court's judgment entry of May 9, 2002 which merely states that the defendant is to "make restitution of court costs, court appointed attorney's fees, correctional fees, and surcharges in this matter." However, no plan of restitution subsequently appears.
We note that there is obviously some confusion regarding the existence or location of any restitution documents and the record of any restitution proceedings because the State also notes in its brief that it contacted the county clerk's office and requested any documents addressing restitution that were filed after the notice of appeal and received only a request for attorney fees.
It is the defendant's obligation to provide a record affirmatively disclosing the alleged error relied upon. State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995); State v. Ruiz, 496 N.W.2d 789, 791 (Iowa Ct.App. 1992). We will not speculate as to what took place, Mudra, 532 N.W.2d at 767, nor can we predicate error on such speculation. State v. Douglas, 485 N.W.2d 619, 625 (Iowa 1992). "Our statutory duty to review the record in a criminal case without regard to technical errors or defects does not confer upon us the duty or authority to treat the unexcused failure to make an otherwise mandatory record . . . as a mere technical error or defect." State v. Ware, 271 N.W.2d 485, 486 (Iowa 1977) (quoting State v. Smith, 228 N.W.2d 111, 112 (Iowa 1975)).
Furthermore, to the extent any proceedings relied upon by Hartsfield were not reported, Hartsfield had a duty to make a record of the district court proceedings by either a supplemental statement of the proceedings under Iowa Rule of Appellate Procedure 6.10(3) or by creating a bill of exceptions under Iowa Rule of Criminal Procedure 2.25. Mudra, 532 N.W.2d at 767. There is no indication in the record before us that he has made any attempt to do either. Therefore, we conclude that by voluntarily failing to provide such a record Hartsfield has waived error on his claims regarding restitution. Mudra, 532 N.W.2d at 767. Hartsfield's failure to make a proper record regarding his present complaints must be ascribed to waiver rather than injustice. See Ware, 271 N.W.2d at 486. D. Ineffective Assistance of Counsel.
We also note that our determination of this issue does not leave Hartsfield without any recourse. If he wishes to challenge his restitution plan or plan of payment he may petition the court for a hearing on such matters at any time under section 910.7(1).
Finally, Hartsfield claims several ground of ineffective assistance of trial counsel. Specifically, he contends counsel was ineffective for (1) not filing a motion to suppress his statements and the evidence of the money and drug paraphernalia, (2) failing to subpoena Sandra Johnson, (3) failing to challenge prosecutorial misconduct, (4) not requesting the court conduct a preliminary hearing, and (5) failing to object to the chain of custody of the crack cocaine.
Ordinarily, we prefer to leave ineffective assistance of counsel claims for postconviction relief proceedings. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). We do so to allow a record on the performance of trial counsel to be developed, Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999), and give the allegedly ineffective attorney the opportunity to defend the charge. State v. Pearson, 547 N.W.2d 236, 241-42 (Iowa Ct.App. 1996). We conclude the record in this case is insufficient for us to address Hartsfield's ineffective assistance claims on direct appeal and preserve them for a possible postconviction relief proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III. CONCLUSION.
For all of the reasons set forth above, we conclude there was insufficient evidence to find Hartsfield in violation of the drug tax stamp statute. Based on the facts in the record here, we find a "dosage unit" to be one $20 or $50 rock of crack cocaine. Accordingly, because Hartsfield possessed less than ten "dosage units" of crack cocaine he does not fit the definition of a "dealer" under chapter 453B and thus was not required to affix a drug tax stamp under this chapter. Therefore, Hartsfield's conviction under Count II for failure to affix a drug tax stamp must be reversed and remanded for entry of judgment of acquittal for lack of sufficient evidence to support this conviction. We further conclude: the evidence in the record is sufficient such that a rational factfinder could find Hartsfield guilty beyond a reasonable doubt of possession of crack cocaine with intent to deliver; his constitutional challenge to Rule 6.13(2) and the copying policies of the state appellate defender's office is moot; and by voluntarily failing to provide us with a record concerning claimed restitution errors he has waived error on these claims. We preserve the specific claims of ineffective assistance of counsel set forth above for a possible postconviction relief proceeding.
We have carefully considered all of the issues raised in Hartsfield's pro se brief, whether or not expressly addressed herein, and find any remaining issues are either not preserved or are without merit.