Opinion
No. 0-540 / 00-30.
Filed October 13, 2000.
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
Edward L. Kirby appeals from the judgment and sentence entered following his conviction for possession with intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary W. Kendell, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
Defendant, Edward L. Kirby, appeals from the judgment and sentence entered following his guilty pleas to possession with intent to deliver crack cocaine in violation of Iowa Code section 124.401(1)(c)(3) (1999) and conspiracy to possess with intent to deliver cocaine in violation of Iowa Code section 124.401(1)(c)(3).
I. Background Facts and Proceedings . Kirby was a passenger in an automobile that was stopped by police. Police searched the car and found two separate bags containing numerous packages of crack cocaine hidden in a loose panel on the passenger side. Kirby denied ownership of the drugs. Kirby and the driver of the vehicle were arrested on drug charges and taken into custody.
On September 14, 1999, the State filed a trial information charging Kirby with: possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(3) (count I); conspiracy to possess a controlled substance with intent to deliver, in violation of Iowa Code section 124.410(1)(b)(3) (count II); conspiracy to deliver a controlled substance, in violation of section 124.401(1)(b)(3) (count III); and failure to possess a drug tax stamp, in violation of Iowa Code sections 453B.3 and 453B.12, (count IV).
Pursuant to a plea agreement, Kirby pleaded guilty to counts I and II. In exchange for his guilty plea, the State amended counts I and II to reduce the charges from class "B" felonies to class "C." The State also dropped the allegation that counts I and II were second offenses and agreed to dismiss the remaining counts. The plea agreement also provided for a sentence of two, indeterminate, ten-year terms to be served consecutively. The plea agreement was presented to the court as a "rule 9 plea," meaning if the court decided not to accept the plea bargain, Kirby would be free to withdraw his guilty pleas. The trial court sentenced defendant in accordance with the terms of the negotiated plea agreement. This appeal followed.
Kirby contends he was denied his constitutional right to effective assistance of counsel by trial counsel's failure to move in arrest of judgment. He asserts his counsel should not have allowed him to plead guilty to and be sentenced for both possession of a controlled substance with intent to deliver and conspiracy to possess a controlled substance with intent to deliver. He points out Iowa Code section 706.4 provides that a person may not be convicted of both conspiracy and the substantive offense. Despite the terms of his plea agreement, he contends the two offenses should have been merged at sentencing in accordance with Iowa Code section 701.9. He requests that we vacate the sentence imposed on the conspiracy count, or in the alternative, preserve the issue for postconviction relief. The State argues Kirby's ineffective assistance claim should be preserved for postconviction relief. In the alternative, the State requests that it be allowed to reinstate the original charges against Kirby in the event we determine his right to effective assistance of counsel was denied.
Section 701.9 provides that "[n]o person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. . . ."
II. Ineffective Assistance . A claim of ineffective assistance of counsel is an exception to the general error preservation rule. Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993). Ordinarily, ineffective assistance of counsel claims are preserved for postconviction proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). These claims may be resolved on direct appeal, however, when the record adequately addresses the issues. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).
The record in this case is insufficient for us to address Kirby's claim on direct appeal. The plea agreement negotiated by trial counsel appears to have been favorable to the defendant, instead of prejudicial. In exchange for pleading guilty to counts I and II and accepting consecutive ten-year terms of incarceration, Kirby avoided the possibility of conviction of the class "B" felony carrying a maximum sentence of twenty-five years of incarceration and a fine of up to $100,000. In addition, other serious charges were dropped pursuant to the plea agreement. In district court, Kirby made no attempt to challenge his pleas for lack of a factual basis and made no claim the events leading to his guilty plea amounted to one offense, not two. In order to allow Kirby's counsel to explain his actions and his position regarding the legality of sentencing on two arguably "mergable" offenses, we affirm Kirby's convictions and sentences but preserve his ineffective assistance of counsel claim for possible postconviction relief. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
AFFIRMED.