Opinion
No. 1-855 / 01-0510.
Filed January 9, 2002.
Appeal from the Iowa District Court for Johnson County, KRISTIN L. HIBBS, Judge.
Thomas Schabilion appeals from his judgment and sentence following a guilty plea to operating while intoxicated (OWI) third offense as an habitual offender in violation of Iowa Code sections 321J.2 and 902.8 (1999). AFFIRMED.
Philip Mears, Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Boesen, Assistant Attorney General, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Thomas Schabilion appeals from the judgment and sentence entered following his guilty plea to operating while intoxicated (OWI) third offense as an habitual offender in violation of Iowa Code sections 321J.2 and 902.8 (1999). He claims the district court failed to state adequate reasons on the record for his sentence and that his plea and sentence should be set aside because of misinformation regarding one of his prior OWI convictions. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Schabilion's claims do not involve any dispute over the facts involved in the incident which led to the charges against him. Schabilion went to a bar in Iowa City just before midnight on November 2, 2000 with his girlfriend. His girlfriend stayed in his truck while he went inside the bar to drink. While Schabilion was inside his girlfriend leaned out of the truck to vomit, passed out, and fell out of the truck onto her face injuring herself. An ambulance was called and officers came in response to the medical emergency call and transported her to the hospital. Officer Lippold was one of the officers called to the scene to investigate the emergency call. While investigating the call Lippold went into the bar and spoke with Schabilion. Lippold observed Schabilion was intoxicated and told him that his girlfriend was being taken to the hospital but that under no circumstances was Schabilion to drive. Schabilion agreed he was drunk and said he would take a cab.
Schabilion agreed in his "Application to Withdraw Not Guilty Plea" that the minutes of evidence accurately described what happened and were substantially correct.
The officers remained in the area because they were concerned Schabilion would drive. Schabilion came out of the bar a couple times and eventually did get into his truck about twenty minutes later and drove it into an alley. The officers stopped Schabilion and asked him to provide a preliminary breath test which he refused. He was also unable to complete the field sobriety tests and upon checking his license the officers realized Schabilion's driving privileges were barred. Thus, the officers took Schabilion into custody, read the implied consent advisory to him, and transported him to the police station for a breath test. The result of the test showed a blood alcohol level of 0.156.
Evidence in the minutes of evidence also showed Schabilion had prior convictions for OWI on February 27, 1990, on February 9, 1995, and on May 18, 1995. The first and third were third offense OWI's and thus were felonies. The second was a Scott County conviction for second offense OWI. In addition Schabilion had been convicted of possession with intent to deliver cocaine in 1996, also a felony. The State therefore charged Schabilion with third offense OWI in violation of Iowa Code section 321J.2 (1999) as an habitual offender pursuant to section 902.8, and for driving while barred in violation of Iowa Code section 321.561.
Pursuant to a plea agreement Schabilion pled guilty to third offense OWI as an habitual offender and the State dismissed the driving while barred charge. The court sentenced Schabilion to an indeterminate fifteen-year term and imposed the minimum fine of $2500 for OWI third offense. Because Schabilion pled guilty as an habitual offender he was subject to the three-year mandatory minimum sentence under section 902.8.
Schabilion appeals from this conviction and sentence contending the district court did not give an adequate statement of reasons for the imposition of the sentence and that the plea and sentence should be set aside because of misinformation regarding one of his prior OWI convictions. Within this second alleged error Schabilion claims both that his trial counsel was ineffective for failing to challenge the accuracy of the date of his prior second offense OWI conviction in Scott County as found in the minutes of evidence and that even without ineffective counsel the involvement of the State in providing misinformation to the court may make the sentence improper.
II. MERITS
Schabilion contends the sentence should be vacated and he should be resentenced because the district court did not give an adequate statement of reasons for the imposition of the sentence. In particular Schabilion argues the sentencing judge failed to expressly use the word "reasons" in her sentencing pronouncement, she did not point to the specific facts she considered, and she made no reference as to why she rejected probation or a halfway house over prison.
Our review of sentencing decisions is for errors at law. Iowa R. App. P. 4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). 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) (quoting State v. Mudra, 532 N.W.2d 765, 766 (Iowa 1995)); Thomas, 547 N.W.2d at 225. An abuse of discretion will be found only when a court acts on grounds clearly untenable or to an extent clearly unreasonable. Id.
Iowa Rule of Criminal Procedure 22(3)(d) requires a sentencing court to "state on the record its reason for selecting the particular sentence." Failure to state on the record the reasons for the sentence imposed requires that the sentence be vacated and the case remanded for amplification of the record and resentencing. State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980); State v. Freeman, 404 N.W.2d 188, 191 (Iowa Ct.App. 1987). Sentencing decisions of the district court are cloaked with a strong presumption in their favor. Thomas, 547 N.W.2d at 225. "A statement may be sufficient, even if terse and succinct, so long as the brevity of the court's statement does not prevent review of the exercise of the court's sentencing discretion." State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). "In applying discretion, the court should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform." State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)).
Based upon the statements of the district court at sentencing it is clear the court considered: Schabilion's age, forty-five years; his criminal history, specifically his numerous previous convictions including seven OWI offenses; the fact he was on parole at the time the offense occurred; his need for rehabilitation; and the protection of the community as a whole. Furthermore, there is no requirement that the court specifically use the word "reasons" when stating its reasons for a sentence. Finally, as Schabilion acknowledges, the sentencing court is not required to give reasons for rejecting particular sentencing options, such as probation. Thomas, 547 N.W.2d at 225. We reject the assertion that "failure" to explain why probation was not granted should be a factor in deciding whether the sentencing court failed to give an adequate statement of reasons for selecting a particular sentence. We conclude the record demonstrates that the district court sufficiently stated its reasons for imposition of the sentence and therefore did not abuse its discretion as alleged.
In considering sentencing options the court is to determine, in its discretion, which of the authorized sentences will provide both the maximum opportunity for rehabilitation of the defendant and the protection of the community from further offenses by the defendant and others. Iowa Code § 901.5.
In his second claim on appeal Schabilion contends the plea and sentence should be set aside because of misinformation regarding the date of his Scott County second offense OWI conviction. He first argues that his trial counsel was ineffective for failing to challenge the accuracy of the date of that conviction as found in the minutes of evidence. Schabilion points out the sentence date listed in the presentence investigation report for the Scott County second offense OWI was May 6, 1994 whereas the minutes of evidence stated he was convicted of this charge on February 9, 1995. Schabilion argues this is important because prior to July 1, 1997 only OWI convictions that had occurred within the six years preceeding an offense counted for the purposes of determining whether a current OWI charge was a first, second or third offense. Therefore, if the conviction occurred in 1994, under prior law it would not count as a previous OWI offense and the charge in this case would only be second offense OWI (an aggravated misdemeanor), whereas if the Scott County conviction occurred in 1995, under prior law it would count and the current charge would be third offense OWI (a felony). Schabilion argues that had his counsel noted and challenged this discrepancy he might have persuaded the State to reduce the charge from an habitual offender charge to third offense OWI. He argues further that even if he were convicted as an habitual offender, the fact that until the 1997 statutory changes his current charge would only have been a second offense OWI charge might have been useful in making a better sentencing argument for probation.
There does appear to be a discrepancy between the dates listed in the presentence investigation report and the minutes of evidence regarding Schabilion's Scott County conviction for OWI second offense.
The standards by which to measure ineffective assistance of counsel claims are well established. To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wenmark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). We may affirm on appeal if either element is lacking. State v Terry, 544 N.W.2d 449, 453 (Iowa 1996).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Schabilion believes the record is adequate, the State does not suggest the record is inadequate, and we find the record adequate to address Schabilion's claims.
The ultimate test on the first element of an ineffective assistance claim, deficient performance, is whether under the entire record and totality of circumstances counsel's performance was within the range of normal competency. State v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct.App. 1987). To prove the second element, resulting prejudice, a defendant must prove counsel's error resulted in actual and substantial disadvantage, creating a reasonable probability that but for the error the outcome would have been different. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999).
Schabilion is correct that prior to the 1997 statutory amendments only OWI convictions which had occurred within the previous six years were considered in classifying a current offense as either a first, second or third OWI. See Iowa Code § 321J.2(3) (1997). However, after June 30, 1997 OWI convictions within the prior twelve years are considered in classifying an OWI offense. See State v. Stoen, 596 N.W.2d 504, 506 (Iowa 1999) (discussing relevant statutory changes). Currently any OWI conviction or deferred judgment that occurred within the previous twelve years counts as a prior offense. Bruno v. Iowa Dept. of Transp., 603 N.W.2d 596, 599 (Iowa 1999). Schabilion's OWI at issue here occurred on November 2, 2000 well after the current twelve year "look back" period was in effect.
Whether the Scott County second offense OWI conviction occurred in February 1995 or May 1994 would have no bearing on whether Schabilion could be charged with, convicted of, and sentenced for third offense OWI and being an habitual offender for his November 2, 2000 offense because under the statute in effect on the date of that offense any OWI conviction that had occurred after November 2, 1988 counted as a prior offense. The only significance of correcting the date would be to point out that absent the July 1, 1997 statutory changes Schabilion's current offense would have been an aggravated misdemeanor rather than a felony and therefore absent those changes his current offense would be a second offense OWI and would not lead to an habitual offender charge. The argument Schabilion suggests could have been made to the prosecutor and the court is therefore necessarily an argument that the prosecutor should be lenient in charging and the court should be lenient in sentencing because his current offense would have been a less serious offense in the absence of those statutory changes.
We find highly speculative at best Schabilion's claim that the prosecutor's and trial court's consideration of the former statute and the policy embedded in it, a policy abandoned by the legislature some three and one-half years before Schabilion's current offense, would have resulted in a different charging or sentencing decision. Such speculation falls far short of the type of proof required in an ineffective assistance claim. Nebinger, 412 N.W.2d at 193. We conclude Schabilion has not shown either that trial counsel had a duty to call the legally insignificant error in date to the attention of the prosecutor or the trial court, or that any prejudice resulted from the alleged breach of duty, and he has thus failed to prove his claim of ineffective assistance of trial counsel.
Schabilion also claims that even if counsel was not ineffective the involvement of the State in providing misinformation to the court concerning the date of the Scott County second offense OWI conviction may make the sentence improper, citing United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). However, the incorrect date appeared in the minutes of evidence, Schabilion makes no claim the trial court considered the minutes in reaching its sentencing decision, and nothing in the record indicates the trial court considered the minutes or the incorrect date in reaching its sentencing decision. Further, the presentence investigation report contained the correct date of the conviction and the trial court apparently considered that date, stating at sentencing that it had considered, among other things, "all of the information contained in the presentence investigation." There is thus no substantial evidence that the legally-insignificant error in date had any effect on the court's sentencing decision, and there is substantial evidence that it had no effect. Schabilion has failed to demonstrate that he was in any manner prejudiced by the misinformation concerning the date, and the facts in this case are readily distinguishable from those in Tucker in which resentencing was required because misinformation had affected a sentencing decision.
AFFIRMED.