Opinion
No. 1-903 / 01-0142.
Filed January 9, 2002.
Appeal from the Iowa District Court for Black Hawk County, JON FISTER, Judge.
Christopher Ricketts appeals the sentence entered by the district court upon his guilty plea to possession of more than five grams of methamphetamine with intent to deliver within 1000 feet of a school and as a second offender, in violation of Iowa Code section 124.401(1)(b), 124.401A, and 124.411 (1999); possession of marijuana with intent to deliver within 1000 feet of a school and as a second offender, in violation of sections 124.401(1)(d), 124.401(1)(c), 124.401A, and 124.411, and possession of hash oil, in violation of section 124.401(5). AFFIRMED.
Linda Del Gallo, State Appellate Defender and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kristin Mueller, Assistant Attorney General, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Defendant appellant Christopher Ricketts appeals the sentence entered by the district court upon his guilty plea to possession of more than five grams of methamphetamine with intent to deliver within 1000 feet of a school and as a second offender in violation of Iowa Code section 124.401(1)(b), 124.401A, and 124.411 (1999); possession of marijuana with intent to deliver within 1000 feet of a school and as a second offender in violation of sections 124.401(1)(d), 124.401(1)(c), 124.401A, and 124.411, and possession of hash oil in violation of section 124.401(5). Defendant claims on this appeal, the second with respect to sentencing on these particular charges, that the trial court abused its discretion by failing to consider all relevant factors; that his trial counsel was ineffective; and that the trial court erred in enhancing his sentence on the marijuana charge. We affirm, but preserve defendant's ineffective assistance of counsel claims for postconviction proceedings.
Defendant pled guilty to the above-named offenses. At his initial sentencing the district court considered the implications of his parole eligibility in imposing a sentence. Defendant appealed: we found such consideration by the district court impermissible, and we remanded for re-sentencing. Upon re-sentencing defendant received a sentence identical to the first, with the exception that the hash oil possession sentence was increased from ninety days to one year. In this re-sentencing, however, there was no indication the district court considered the effect of parole eligibility in determining the sentence.
Defendant claims on appeal that the district court did not properly consider all relevant factors in sentencing defendant, particularly the testimony by correctional counselor LaBarge that defendant was a model prisoner and by Pastor Laursen that defendant had a changed heart and was accepting responsibility for his misdeeds.
The imposition of a sentence is generally within the discretion of the trial court, and we review for abuse of that discretion. State v. Garrow, 480 N.W.2d 256, 259 (Iowa 1992).
Iowa Code section 901.5 provides that an appropriate sentence is one providing "maximum opportunity for rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others." The district court demonstrates its exercise of discretion by stating reasons for its sentence on the record. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). Defendant claims the district court did not adequately consider the positive aspects of his life as evidenced by his good prison record and his pastor's faith in his renewed sense of responsibility. The district court stated, after outlining defendant's history of drug offenses,
I have a hard time accepting the fact that you have demonstrated anything . . . [by good prison behavior] except that you function well in a prison system, you are in an environment that is completely controlled. You do not function in a system where you are allowed to make your own decisions and accept your own responsibility for what you're doing.
The court went on to conclude that based upon defendant's record before his imprisonment for the current offenses he was the type of criminal the statutory second-offender and school-vicinity sentencing provisions were designed for.
In the absence of a statute mandating a particular sentence, it is the court's prerogative to determine whether a sentence of confinement will be imposed, suspended, or deferred. See Iowa Code § 901.5. It is also the court's prerogative to determine the maximum length of the defendant's sentence. See State v. Stakenburg, 215 N.W.2d 265, 267 (Iowa 1974). Although we recognize the sentence defendant now has is not one he would have envisioned following his successful appeal, we do not find an abuse of discretion in this second sentence which we note was issued by a different judge. It appears the court considered all relevant factors. We affirm on this issue.
Defendant next contends he was rendered ineffective assistance of counsel. Defendant argues the prosecutor's cross-examination violated his due process rights and his attorney was ineffective for failing to object to it. At the re-sentencing hearing the prosecutor asked defendant's witnesses, LaBarge and Laursen, apparently in an attempt to cast doubt upon their testimony that defendant was taking responsibility for his actions, whether they were aware that defendant had appealed the current case. Defendant argues that the prosecutor used defendant's pursuit of his own due process rights (namely, appealing) as evidence before the sentencing court that he was not accepting responsibility for his crimes. Defendant contends that this was a violation of his due process rights, and that defendant's counsel was ineffective in failing to object to that line of questioning.
Defendant also points to what he claims was prosecutorial misconduct in his ineffective assistance of counsel claim. Defendant points out as objectionable comments made by the prosecutor during cross-examination of witness Laursen which, he argues, inappropriately created evidence and expressed opinions of defendant's truthfulness. Defendant claims his counsel was ineffective for failing to object to these comments.
In order to succeed on his ineffectiveness claim, defendant must establish both that his counsel failed to perform an essential duty and that prejudice resulted. Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985); Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). Generally, ineffective assistance of counsel claims are preserved for postconviction proceedings to allow trial counsel an opportunity to defend the charge. State v. Mulder, 313 N.W.2d 885, 890 (Iowa 1981). Accordingly, we preserve these claims of ineffective assistance for postconviction proceedings so the facts can be further developed. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
Defendant further argues that, in light of his successful appeal as well as what he claims was a harsher second sentence following his re-hearing, he was targeted by the court's vindictiveness and his due process rights were thereby violated. We do note the unusual facts in this case involving the appeal and re-sentencing. Our review of constitutional claims is de novo. Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989). A defendant's due process rights are not necessarily violated when he receives a harsher sentence following re-hearing, but the court's sentence must be based on objective information concerning identifiable conduct of the defendant. See North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656, 670 (1969).
In addressing defendant's due process claim that the district court acted vindictively against him in issuing what he claims was a harsher sentence after his successful appeal, we believe the record shows that the court did not act vindictively. Noticeably, the judge who issued the second sentence was not the one who sentenced defendant the first time. The only part of the sentence which could be construed as "harsher" was the hash oil possession, for which defendant received one year instead of the ninety days he had first been sentenced to for that offense. But even that sentence is not actually harsher, because defendant's hash oil sentence was discharged before the one-year sentence was imposed. The additional 270 plus days defendant will serve for the hash oil will be served concurrently with the methamphetamine and marijuana offenses, which run far longer than 270 days, so defendant will serve no time that he would not have already served for the two more serious methamphetamine and marijuana offenses. We further note that the court's sentence was reasonable, considering the crime. Defendant was a second-offender, selling drugs within 1000 yards of a school. He had served time previously on drug charges and would have been aware of the consequences. We defer to the district court's conclusion that he is the type of offender the legislature had in mind when it provided for enhanced sentences for repeat offenders and drug dealers dealing in the vicinity of young children.
Defendant's third claim on appeal is that the district court was in error to sentence him to an enhanced penalty when, as defendant claims, he was never properly charged under the applicable code section. Essentially the trial information stated defendant was subject to an enhanced sentence for possession with intent to deliver marijuana within 1000 feet of a school. The Iowa Code section erroneously cited for that enhancement was 124.401B, which provides for community service hours, rather than 124.401A, which provides for an additional five-year sentence. The purpose of a trial information is to inform the defendant of the crime charged. State v. Grice, 515 N.W.2d 20, 23 (Iowa 1994). The court may order the indictment amended so as to correct errors or omissions in matters of form or substance so long as substantial rights are not prejudiced or wholly new offenses are not charged. Iowa R. Crim. P. 4(8)(a). The trial court informed defendant prior to his plea bargain about the five-year enhancement for marijuana possession with intent to deliver within 1000 feet of a school. We find defendant would have been well aware of the five-year enhancement possibility, and that the court was not in error to correct a typographical error in the trial information.
AFFIRMED.