Opinion
No. 2-556 / 01-2026
Filed September 11, 2002
Appeal from the Iowa District Court for Cass County, Charles L. Smith, III, Judge.
Defendant appeals from the sentence entered upon his conviction for operating while intoxicated, third offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, and James P. Barry, County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
Keith Jespersen appeals from the sentence entered upon his conviction for operating while intoxicated (OWI), third offense, in violation of Iowa Code section 321J.2 (2001). The district court sentenced him to a five-year indeterminate term of imprisonment and ordered him to attend the OWI offender program. Jespersen asserts the sentencing court abused its discretion by relying on improper sentencing considerations. In the alternative, he contends his trial counsel rendered ineffective assistance. We affirm.
I. Scope of Review.
A sentence imposed by the district court is reviewed for errors at law. Iowa R. App. P. 6.4. "Sentencing decisions . . . are cloaked with a strong presumption in their favor." State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." Id. (citing State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983)).
II. Unproven Offenses.
Jespersen first claims the sentencing court improperly considered charges of possession of cocaine and possession of a controlled substance with intent to deliver. These charges were listed on Jespersen's presentence investigation (PSI) with notations of "Dismissed" next to them. Jesperson believes these charges, although clearly demarked as dismissed, affected the court's decision to reject his request for a thirty-day jail sentence.
Jespersen asserts this issue is properly before us despite his failure to raise it in the district court. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994) ("The court may correct an illegal sentence at any time."). The State, however, argues Jespersen waived any challenge to the contents or preparation of the PSI by failing to object to it at sentencing. Challenges to sentences illegally imposed due to procedural errors, as opposed to those sentences illegal in themselves, are subject to traditional error preservation rules, and thus must be raised at the earliest opportunity. See Tindell v. State, 629 N.W.2d 357, 358 (Iowa 2001). Jespersen does not claim his sentence is in excess of that permitted by law and thus outside the jurisdiction of the court to impose. Rather, he claims improper information was included in the PSI report. We conclude Jespersen asserts a procedural error which is precluded by our normal error-preservation rules. Id.
Our discussion does not end here, however, because Jespersen claims his trial counsel was ineffective in failing to make such a challenge to the contents of the PSI report in the district court. Generally, claims of ineffective assistance of counsel are preserved for postconviction proceedings. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App. 1996). However, they may be resolved on direct appeal when the record adequately addresses the issues. Id. A defendant receives ineffective assistance when: (1) counsel fails in an essential duty; and (2) prejudice results. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997).
We reject Jespersen's claim based on our conclusion he cannot establish the PSI report's inclusion of two dismissed charges prejudiced him in any fashion. It is clear a sentencing court may not consider an unproven offense in determining the appropriate sentence unless the defendant admits it or the offense is otherwise proven in the record. See State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002); State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 2000). However, in this case the PSI clearly noted the two charges had been dismissed prior to conviction. There is no affirmative evidence from either the court's statements at the sentencing hearing or from its subsequent written order that it considered the dismissed charges in determining its sentencing decision. In the absence of such evidence, we will not draw an inference of improper sentencing considerations. See Formaro, 638 N.W.2d at 725. Furthermore, as noted, the sentence is within the statutorily allowable range. We therefore conclude there is no reasonable probability the sentence would have been different had counsel objected to the dismissed charges' inclusion in the PSI report.
III. Release of Criminal History Data.
Jesperson next directs our attention to Iowa Code section 692.2(1)(b)(3), which states in pertinent part:
Criminal history data that does not contain any disposition data after eighteen months from the date of arrest may only be disseminated by the department [of public safety] to criminal or juvenile justice agencies, to the person who is the subject of the criminal history data or the person's attorney, or to a person requesting the criminal history date with a signed release from the person who is the subject of the criminal history data authorizing the requesting person access to criminal history data.
Jesperson contends (1) he did not authorize the release of his prior criminal record data contained in the PSI report; (2) the data were illegally included in the report; and (3) the sentencing court improperly relied upon the data in its sentencing determination.
Jespersen did not object below to the inclusion of this information in the PSI report, and therefore has not preserved it for our review. We therefore address his alternative argument, that counsel was ineffective in failing to lodge an objection to the PSI report based on section 692(1)(b)(3).
We find the record sufficient to address this contention, and conclude counsel did not breach an essential duty when he failed to object to the release of Jespersen's criminal history information for inclusion in the PSI. Iowa Code section 901.2 requires a sentencing court to order a PSI, which shall contain "any information . . . which is relevant to the question of sentencing." A defendant's criminal record is a required part of this information. Iowa Code § 901.3(2). Further, section 90.13(7) requires "[a]ll local and state mental and correctional institutions, courts and police agencies [to] furnish to the investigator on request the defendant's criminal record. . . ."
We note parenthetically the record does not disclose whether there was such a signed release from Jespersen. Without support in the record, Jesperson now affirmatively asserts "there is no signed release for the data in question."
We will consider the challenged statute in its entirety and in para materia, or together, with other pertinent statutes. State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). In construing statutes we must give effect to the meaning intended by the legislature. In so doing we properly may consider the objects sought to be attained and the circumstances under which the statute was enacted. Office of Consumer Advocate v. Iowa State Commerce Comm'n, 376 N.W.2d 878, 881 (Iowa 1985). We seek a reasonable interpretation that will best attain the purpose of the statute and avoid an absurd result. In re N.H., 383 N.W.2d 570, 572 (Iowa 1986).
Considered in their entirety, we do not believe the above statutes can reasonably be read to require a signed release from the defendant before a court or law enforcement agency can release the defendant's criminal history for purposes of preparing the PSI. Because a defendant's criminal record is a required subject of the PSI, it would be illogical to conclude a defendant could stop the dissemination of such material by refusing to sign a release of the information. Furthermore, the PSI report in this case does not list any "[c]riminal history data that does not contain any disposition data after eighteen months from the date of arrest." Iowa Code § 692.2(1)(b)(3). Accordingly, we reject Jespersen's contention counsel was ineffective in failing to object to the PSI on this ground.
IV. Remaining Issues.
We have considered all other claims asserted by Jesperson and find them to be without merit.