Opinion
No. 4-536 / 04-0042.
September 9, 2004.
Appeal from the Iowa District Court for Scott County, Mary E. Howes, District Associate Judge.
A defendant appeals from the judgments and sentences entered by the district court following his guilty pleas to possession of a controlled substance and driving while barred. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, William Davis, County Attorney, and Marc Gellerman and Alan Havercamp, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Terrance Hayes appeals from the judgments and sentences entered by the district court following his guilty pleas to one count of possession of a controlled substance in violation of Iowa Code section 124.401(5) (2003), and one count of driving while barred as a habitual offender in violation of sections 321.555(1) and 321.561. Hayes claims the district court erred by failing to substantially comply with the requirements of Iowa Rule of Criminal Procedure 2.8(2)( b). In the alternative, he asserts that trial counsel was ineffective because counsel neither ensured court compliance with rule 2.8(2)( b), nor filed a motion in arrest of judgment. In addition, Hayes contends the district court imposed an illegal sentence on his driving while barred conviction, as it considered impermissible factors in imposing the minimum fine.
Hayes made the first two claims not only in this matter ( Hayes II), but also in the companion cases of State v. Hayes, No. 04-0039 (Iowa Ct.App. Sept. 9, 2004) ( Hayes I), and State v. Hayes, No. 04-0043 (Iowa Ct.App. Sept. 9, 2004) ( Hayes III). This court has fully addressed Hayes's claims regarding substantial compliance with rule 2.8(2)( b) and the alleged ineffective assistance of trial counsel in Hayes III. We find it unnecessary to repeat the discussion in full. We simply note that, for reasons stated in Hayes III, we conclude Hayes has failed to preserve error on his claim that the district court did not substantially comply with rule 2.8(2)( b), see Iowa R. Crim. P. 2.24(3)( a); State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002), and that Hayes has failed to either adequately raise or establish his ineffective assistance of counsel claims, see Iowa R. App. P. 6.14(1)( c); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Accordingly, Hayes's convictions are affirmed.
Hayes entered guilty pleas in all three cases as part of an extensive plea agreement with the State. He was also sentenced in all three cases during one proceeding. Except for minor distinctions that are not germane to our ultimate ruling, for these first two claims Hayes makes the same arguments and relies on the same facts and the same law in Hayes III as he does in the instant matter.
However, Hayes's third claim, regarding the legality of the sentence imposed on his driving while barred conviction, is unique to this case. The State concedes, and we agree, that this claim is meritorious, and requires us to vacate the sentence imposed for Hayes's driving while barred conviction, and remand to the district court for resentencing on that particular conviction.
When sentencing Hayes on the driving while barred conviction the district court imposed a $500 fine, the minimum fine for aggravated misdemeanors. See Iowa Code § 903.1(2). The court stated that it declined to waive the fine because of Hayes's "previous criminal history," and because the court was "going to be dismissing a significant amount of simple misdemeanors" Hayes had been charged with. The law is clear that a court cannot not consider unprosecuted and unproven charges when imposing sentence. See State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998). Here, Hayes did not admit to, and the record does not otherwise establish, the validity of the dismissed simple misdemeanor charges. It was therefore improper for the court to consider the dismissed charges when imposing sentence. Hayes's sentence for driving while barred is accordingly vacated, and this matter is remanded for resentencing on the driving while barred conviction. See id.
Hayes requests that, upon remand, we direct he be sentenced by "a judge other than the judge who previously sentenced him." We see no proof or even allegation of bias or other similar matter that would necessitate such action by this court. Hayes's request is therefore denied.