Opinion
No. 3-091 / 02-1247
Filed March 26, 2003
Appeal from the Iowa District Court for Dallas County, Dale B. Hagen, Judge.
Gina Oddy appeals following her guilty plea to unauthorized use of a credit card. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Wayne Reisetter, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Gina Oddy appeals following her guilty plea to unauthorized use of a credit card, in violation of Iowa Code section 715A.6(1)(c) (2001). She claims the court failed to give sufficient reasons for her sentence. She also claims she received ineffective assistance of counsel during the plea proceedings.
I. Background Facts Proceedings
Oddy obtained her boyfriend's automatic teller machine (ATM) card and took $340 from his checking and savings accounts without his permission. She was charged with unauthorized use of a credit card, which is an aggravated misdemeanor. See Iowa Code § 715A.6(2).
On July 25, 2002, Oddy signed a written guilty plea. She agreed to be sentenced immediately. Oddy was sentenced to a term of imprisonment not to exceed two years, to be served concurrently with a sentence from another county, and fined $500. Under a notation, "Approved as to form and content:" Oddy and her attorney signed the judgment and sentence. She appeals.
II. Sentence
Oddy claims her sentence was improper because the district court did not state on the record its reasons for selecting a particular sentence, as required by Iowa Rule of Criminal Procedure 2.23(3)( d). We review the record to determine if the district court abused its discretion in failing to state reasons for the sentence imposed. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). An abuse of discretion will be found only when a court acts on grounds clearly untenable or to an extent clearly unreasonable. Id.
The State claims the sentence was part of the plea agreement. Where the sentence is part of the plea agreement, "the sentence was not the product of the exercise of the trial court's discretion but of the process of giving effect to the parties' agreement." State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995) (quoting State v. Snyder, 336 N.W.2d 728, 729 (Iowa 1983)). In these circumstances, there is no purpose in stating the reasons for the sentence and failure to follow rule 2.23(3)( d) is harmless. Id.
Here, the fact Oddy approved the judgment and sentence "as to form and content," shows the sentence was actually part of the plea agreement. Therefore, the district court's failure to set forth reasons for the sentence was harmless. We find the district court did not abuse its discretion by failing to give reasons for the sentence imposed in this case.
We note the record in this case is very sparse, and there was no transcript. Our supreme court has stated, "We believe, and strongly advise, that the better practice for a district court in situations where there is no transcription of the proceedings is to always state sufficient reasons in the sentencing order." State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995).
III. Ineffective Assistance
Oddy contends she received ineffective assistance because her counsel gave her misadvice. Oddy was on probation for a previous offense. She asserts defense counsel in this case informed her the probation officer from the previous offense was going to recommend she receive a two-year sentence for a probation revocation. She claims this representation led her to plead guilty in the present case. Oddy states she later found out the probation officer was not going to recommend a two-year sentence.
Generally, claims of ineffective assistance of counsel are preserved for postconviction proceedings. State v. Davis, 584 N.W.2d 913, 918 (Iowa Ct.App. 1998). However, they may be resolved in direct appeal when the record adequately addresses the issues. Id. The record in this case is insufficient for us to address on appeal the issue Oddy raises. We determine the issue must be preserved for possible postconviction proceedings.
We affirm Oddy's conviction and sentence.