Opinion
No. 1-1046 / 01-0552.
Filed February 20, 2002.
Appeal from the Iowa District Court for Linn County, AMANDA P. POTTERFIELD, Judge.
Jack Thompkins appeals from the judgment and sentence entered upon a jury verdict finding him guilty of two counts of second-degree robbery as a habitual offender. AFFIRMED IN PART AND VACATED IN PART.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, and Denver Dillard, County Attorney, for appellee.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Jack Thompkins appeals from the judgment and sentence entered upon a jury verdict finding him guilty of two counts of second-degree robbery as a habitual offender. Thompkins contends the district court exceeded its authority by imposing $1000 fines for each conviction. He also asserts his trial counsel was ineffective in failing to fully investigate and challenge the reliability of incriminating fingerprint evidence. Finally, Thompkins, in a pro se brief, challenges the constitutionality of the district court's jury instructions.
Where a sentence is challenged as beyond the court's authority, we review for errors at law. State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987). The State concedes, and we agree, that the district court had no authority to impose a fine under the applicable sentencing statutes. The defendant was properly sentenced pursuant to Iowa Code section 902.9(2) (1999) as a habitual offender. Neither this section, nor any other applicable sentencing provision, provides for the imposition of a fine. See Iowa Code § 902.9(2) (habitual offender may be sentenced to term of incarceration up to fifteen years). Accordingly, imposition of fine pursuant to section 902.9(3) was error. See Iowa Code § 902.9(3) ("A class "C" felon, not an habitual offender, . . . may be sentenced to a fine of at least five hundred dollars but not more than ten thousand dollars.") (emphasis added); State v. Halterman, 630 N.W.2d 611, 613-14 (Iowa Ct. App. 2001) (fine imposed on habitual offender improper where no separate and applicable sentencing statute authorized imposition of a fine). We vacate that portion of the court's sentence imposing a fine.
We ordinarily preserve claims of ineffective assistance of counsel raised on direct appeal in postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978); State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct. App. 1999). The parties concede the record is inadequate to address Thompkins' ineffective assistance of counsel claim. We accordingly preserve this issue for possible postconviction proceedings.
Finally, we decline to address Thompkins' jury instruction challenge. It has been repeatedly held that failure to timely object to jury instructions in the criminal proceeding waives the right to assert error on appeal. State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988). Because no objection to the jury instructions was made of record, we shall not consider Thompkins' assertions on appeal.
The district court decision is affirmed in part and vacated in part.
AFFIRMED IN PART AND VACATED IN PART.