Opinion
No. 5-832 / 04-1392
Filed January 19, 2006
Appeal from the Iowa District Court for Kossuth County, Donald J. Bormann, District Associate Judge.
Defendant appeals his conviction for third-degree burglary as a habitual offender. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Todd Holmes, County Attorney, and Ann Gales, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., Vogel, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
A jury found Frederick Joseph Olson guilty of burglary in the third degree, a class D felony, in violation of Iowa Code sections 713.1 and 713.6A (2003) and, following his admission of two prior felony convictions, he was also determined to be a habitual offender as provided by Iowa Code sections 902.8 and 902.9(3). He has now appealed his conviction and the resulting sentence, alleging error in the computation of jail credit and an ineffective-assistance-of-counsel claim. We affirm, preserving, however, the claim of ineffective counsel for possible further proceedings.
I. Background facts and proceedings.
Olson was arrested and charged with burglary on August 16, 2003. He did not post the $9,750 cash-only bond and was confined in the Kossuth County jail. A trial information charging third-degree burglary was later filed. On September 15, 2003, Olson requested an order modifying his release conditions. The request was not resisted, and the court ordered his bond changed from cash-only to an unsecured bond in the same amount. However, Olson was not released on the unsecured bond, and on September 16, 2003, he was transferred to the custody of the Iowa Department of Corrections and placed in the Clarinda Correctional Center on an unrelated offense.
The record does not disclose the purpose of the request for a modification of the release conditions in view of the impending transfer to the department of corrections. However, had Olson actually been released pursuant to the change, arguably his position for granting additional credit would have been weakened.
In July 2004 the trial information was amended to charge Olson as a habitual offender. He was returned from prison, tried, and convicted of burglary and as a habitual offender. He was then returned to the Clarinda facility.
The district court granted the State's "Motion to Amend the Conditions of Release" on August 24, 2004, based on Olson's expected release from the Clarinda facility on August 25, 2004. The cash-only $9,750 bond was reinstated. Olson was sentenced to an indeterminate term of fifteen years on August 30, 2004. The district court credited him with five days of jail time for the August 25-30 period he was in the county jail.
Olson filed his notice of appeal to the supreme court on September 1, 2004. On October 4, 2004 Olson filed a motion seeking a corrective order to credit him with an additional thirty-four days credit for time spent in the county jail prior to sentencing, which the court granted.
The order granted Olson presentence jail credit for August 16 to September 16, 2003, (thirty-one days) and August 25 to September 2, 2004 (eight days).
The State questions the district court's authority to issue a corrective order as the motion and order took place after the notice of appeal was filed. Although we are inclined to think the corrective order dealt with a subject not involved in the appeal (credit for Kossuth County jail time in the motion as opposed to department of corrections confinement time here) and so not preempted by the appeal notice, we only consider now Olson's claim that he should receive credit while in the Clarinda Correctional facility. Thus we do not pass on the validity of the district court's order correcting the sentence.
In this appeal Olson asserts he should be given credit for the time he was confined prior to sentencing while in the custody of the Iowa Department of Corrections in the Clarinda Correctional Center on the unrelated charge. He further contends his trial counsel was ineffective in failing to adequately advise him as to the law regarding the enhancement of his sentence for being a habitual offender.
II. Review standard.
We review challenges to the district court's sentence for errors at law. Iowa R. App. P. 6.4; State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). Because ineffective-assistance-of-counsel claims implicate constitutional rights, they are reviewed de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998).
III. Error preservation.
Sentencing challenges are not subject to ordinary error preservation rules, State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001), and unlawful sentences may be questioned on appeal although the issue was never raised in the trial court. State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). This necessarily applies to time-served credit issues as well, since the question may not arise until after sentence is imposed. See State v. Hawk, 616 N.W.2d 527, 530 (Iowa 2000) (noting proper presentence confinement credit may not be determined until after sentence imposed).
Likewise, ineffective-counsel claims, by their nature, cannot ordinarily be initially presented to the original trial court, and we do not apply the usual error preservation concepts to such claims. Collins, 588 N.W.2d at 401.
IV. Credit for time in the Clarinda Correctional Center.
Olson claims he should be granted credit on his sentence for the period he was in the custody of the department of corrections in the Clarinda Correctional Center. This issue hinges on Iowa Code section 903A.5, which relevantly provides:
If an inmate was confined to a county jail or other correctional or mental facility at any time prior to sentencing, or after sentencing but prior to the case having been decided on appeal, because of failure to furnish bail or because of being charged with a non-bailable offense, the inmate shall be given credit for the days already served upon the term of the sentence.
(Emphasis added.)
As noted, Olson's time in the Clarinda Correctional Center prior to sentencing was due to a criminal conviction having no connection with the burglary charge involved here. We are firmly committed to the general principle that credit will be granted for presentence confinement only if the confinement is related to the charge to which the credit is sought to be applied. State v. Canas, 571 N.W.2d 20, 24 (Iowa 1997); State v. Orte, 540 N.W.2d 435, 438 (Iowa 1995); Walton v. State, 407 N.W.2d 588, 591 (Iowa 1987). Olson acknowledges this principle, but nevertheless makes a straightforward argument why he should be given credit for his Clarinda prison time: he was confined in the Kossuth County jail and failed to make bail on the charge for which he was confined. Therefore, he claims, according to section 903A.5 he should receive the credit as long as he continued to be confined in "a county jail or correctional . . . facility."
Olson's argument disregards the fact he was confined in the Clarinda facility on an entirely unrelated conviction. At best, Olson can argue he was being confined on both the burglary charge and the unrelated conviction in the Clarinda facility. Another jurisdiction, in similar circumstances, has given credit for presentence confinement only when the confinement is solely due to the failure to post bail. Jenkins v. State, 49 P.3d 1028, 1030-31 (Wyo. 2002); Rosalez v. State, 955 P.2d 899, 900 (Wyo. 1998). Our supreme court implicitly recognized such a rationale in State v. Johnson, 167 N.W.2d 696 (Iowa 1969). There, in an analogous situation in which a defendant sought credit against each of two consecutive sentences arising from his presentence confinement on both of the two charges, the court reasoned:
While defendant acknowledges he was in jail on two charges, in his argument he ignores the incarceration for aggravated robbery. He states: "Again we reiterate that this defendant could not make bond in the assault case and consequently remained in custody." This is not strictly accurate. Failure to make bond in each of the cases kept defendant in jail. Had defendant made bond in the assault case he would still have remained in jail unless he also made bond in the robbery with aggravation charge.
We do not hold that defendant would not be entitled to credit in either case. But, rather, that he is not entitled to credit in both cases where the sentences are consecutive.
Johnson, 167 N.W.2d at 701. Here, it is obvious Olson's time in the Clarinda facility had nothing to do with his failure to make bail in the burglary case. We agree that Olson is entitled to credit for each confinement, but only against the charge to which that confinement was related.
In analyzing Olson's argument, it is somewhat helpful to consider the generally accepted reason why presentence credit is extended in the first place. It is basically a fairness concept: if credit were not given for presentence confinement for those who failed to make bail, then they would be confined for significantly more time than a person in the same situation who was able to make bail. State v. Tauiliili, 29 P.3d 914, 918 (Haw. 2001); Commonwealth v. Carter, 411 N.E.2d 184, 185 (Mass.App.Ct. 1980); People v. Cantu, 323 N.W.2d 719, 720-21 (Mich.Ct.App. 1982); Nissel v. Pearce, 764 P.2d 224, 227-28 (Or. 1988); In re Perry 400 A.2d 1013, 1015 (Vt. 1979); see generally Wade R. Habeeb, Annotation, Right to Credit for Time Spent in Custody Prior to Trial or Sentence, 77 A.L.R. 3d 182, § 4 (1977). Were we to extend credit as Olson contends we should, then a defendant in a similar situation who did post bond would serve more time than Olson — surely not an intended result.
We hold Olson is entitled to credit on the burglary as a habitual offender conviction for the presentence time spent in the Kossuth County jail, but not for the time served in the custody of the department of corrections in the Clarinda Correctional Center.
V. Ineffective assistance of counsel.
Although ineffective-counsel claims are ordinarily first presented to the district court, we will entertain them on direct appeal if the record is sufficient to permit it. State v. Truesdell 679 N.W.2d 611, 615-16 (Iowa 2004).
To prevail on an ineffective-assistance-of-counsel claim on direct appeal, the defendant must establish as a matter of law that counsel failed to perform an essential duty and prejudice ensued. See State v. Martinez, 679 N.W.2d 620, 625 (Iowa 2004). If "the record is adequate to determine as a matter of law that the defendant will be unable to establish one or both of the elements of his ineffective-assistance claim," we will affirm his conviction without preserving such claims. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003) (emphasis added); accord State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). If it is necessary to more fully develop a factual record, we preserve the ineffective-assistance claim for a possible postconviction relief action. See Reynolds, 670 N.W.2d at 411.
State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004).
Olson asserts his trial counsel failed to sufficiently explain the operation and effect of the habitual offender enhancement to him. There is some suggestion in the record that defense counsel may have thought the State could have added the habitual offender charge after a plea of guilty to the original burglary charge. There is also some indication that the prosecuting attorney was not entirely familiar with the process for pursuing a habitual offender charge. The thrust of Olson's claim is that he would have pleaded guilty to the burglary charge without the habitual defendant enhancement if the situation had been properly explained and presented to him.
Although we agree a failure of counsel to adequately advise a defendant on the applicable law may be a breach of an essential duty, see Wanatee v. Ault, 39 F. Supp. 2d 1164, 1172 (N.D. Iowa 1999), the record before us is simply inadequate to evaluate the claimed breach of duty or any resulting prejudice. Such matters as the nature and extent of any plea negotiations prior to the addition of the habitual offender charge or before trial, the willingness (or lack thereof) of the State to accept a plea without the enhancement, the nature and extent of the advice given Olson by his trial counsel, and whether Olson would have, in any event, entered a guilty plea and thus avoided the habitual offender enhancement are not sufficiently addressed in the present record.
We therefore preserve the defendant's claim that his trial counsel was ineffective for possible further proceedings. See Taylor, 689 N.W.2d at 134.
The trial court is affirmed.