Opinion
No. 5-057 / 04-1106
Filed February 24, 2005
Appeal from the Iowa District Court for Scott County, Mary E. Howe (Guilty Plea) and Douglas C. McDonald (Sentencing), Judges.
Agnes Lashbrook Kennedy appeals her sentence on the charge of prostitution. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, William E. Davis, County Attorney, and Alan R. Havercamp, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Agnes Lashbrook Kennedy appeals her sentence on the charge of Prostitution, an aggravated misdemeanor, in violation of Iowa Code section 725.1 (2003). Kennedy asserts the district court abused its discretion when it considered unproven offenses in sentencing her. Kennedy further contends her trial counsel was ineffective in failing to present verification of mitigating evidence at sentencing. We affirm.
I. Background Facts and Proceedings
On May 17, 2004, the district court accepted Kennedy's plea to one count of prostitution. On July 9, 2004, a sentencing hearing was held where Kennedy made the following statement in mitigation of sentence,
I went to Genesis West [a hospital] a long time ago and was in continuing care, and I got back in that. I had an evaluation at CADS. I am in a woman's group and attend AA. I have not been using. I have not gone to Vera French and have not been taking the Depakote yet. Someone contacted me and said I should take the Jail Deferment Program.
Kennedy also stated that she was working at Scotty's auction.
The district court then responded by noting that none of Kennedy's assertions had been verified. Kennedy's trial counsel made the statement that he could get verification. The district court then sentenced Kennedy to two years with the Iowa Department of Corrections and a $500.00 fine.
II. Scope of Review
"Our review of challenges to the legality of a sentence is for errors at law." State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999). The imposition of a sentence is within the discretion of the district court and will be disturbed only upon a showing of abuse of discretion. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). Abuse of discretion exists when the discretion is exercised on grounds which are clearly untenable or to an extent clearly unreasonable. Id. III. Issues A. Unproven Offenses
In entering a sentence a district court may not rely on or consider charges of an unprosecuted offense that was not admitted by the defendant or otherwise proven. See State v. Black, 324 N.W.2d 313, 315 (Iowa 1982) (citing State v. Messer, 306 N.W.2d 731, 732 (Iowa 1981)).
The use of an impermissible sentencing factor is viewed as an abuse of discretion and requires resentencing. Thomas, 520 N.W.2d at 513. Kennedy claims she is entitled to resentencing because the district court considered prior unprosecuted and unproven drug arrests in sentencing her.
Our review of the record reveals that the sentencing court's initial statement with regard to Kennedy's criminal history was that Kennedy has a "lengthy record of prostitution that goes back years and years. . . ." Later in the proceedings, after defense counsel asked for a stay of mittimus and the Court explained Kennedy's right to appeal, it then stated, "[t]he reason for the sentence is that your history goes back year after year with multiple arrests for prostitution and drug involvement." However, the sentencing court abandoned this reasoning and modified its grounds for sentencing after Kennedy informed the sentencing court that she had never been convicted of a drug crime.
THE DEFENDANT: I have no convictions for drug paraphernalia —
THE COURT: All the arrests I remember are drug —
THE DEFENDANT: I have no drug charges.
THE COURT: You have been to prison before for prostitution.
THE DEFENDANT: Twice
THE COURT: That is the reason for the sentence.
THE DEFENDANT: I have had no drug charges, no paraphernalia, no assaults of my clients or those types of things.
THE COURT: You have one of the longest records of any prostitute we have got.
THE DEFENDANT: Right, but I am not a felon.
(emphasis added). Thus, the sentencing court did not impermissibly consider prior drug arrests in imposing its sentence. Instead, the reason for the sentence as initially stated by the sentencing court and later repeated, was the fact Kennedy had a lengthy history of prostitution and had twice before been sent to prison for such activity. This was not an abuse of discretion.
B. Assistance of Counsel
Ineffective assistance of counsel claims entail a constitutional challenge and are thus reviewed de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both ineffective assistance and prejudice. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). "To establish the first prong, the applicant must demonstrate the attorney performed below the standard demanded of a reasonably competent attorney." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). To demonstrate prejudice the applicant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 143 (citations omitted). These elements must be proven by a preponderance of the evidence. Id. at 142. If one of these elements is lacking, it is not necessary for us to address the other element. Hischke, 639 N.W.2d at 8.
The sentencing court responded to Kennedy's mitigating statements at the sentencing hearing regarding her involvement in various programs and the obtaining of employment by stating that none of these statements was verified. Kennedy's trial counsel responded by stating that he could get verification. The hearing proceeded with no follow-up by the court or defense counsel on this offer. However, the record reveals that even had verification been provided, Kennedy's sentence would not have different.
The State argues that Kennedy has failed to demonstrate ineffective assistance of counsel because the record, "does not show what type of verification, if any, exists." In the alternative, the State argues that this lack of evidence regarding verification may warrant preservation of this issue for a possible postconviction relief proceeding. See State v. Johnson, 445 N.W.2d 337, 339 (noting that ordinarily postconviction relief proceedings are the preferred forum for ineffective assistance of counsel claims). Because of Kennedy's trial counsel's affirmative statement that he could obtain verification, we do not entertain either of these alternatives.
Kennedy's unverified mitigating statements of "cleaning up her act" were apparent references to her past drug use and unfortunate life situation. However, the sentencing court's primary concern was instead Kennedy's "lengthy record of prostitution" including her two prior imprisonments for this activity. See Iowa Code § 901.5 (providing that the defendant's need for rehabilitation and the need for the protection of the community from further offense by the defendant are to be considered in imposing sentence). While Kennedy's prostitution may have been linked or related to other problems in her life, it is not probable that but for the lack of verification of the programs she stated she was participating in, her sentence would have been different. Kennedy was not prejudiced by her counsel's failure to verify her mitigating statements.