Opinion
No. 3-016 / 02-0255
Filed February 12, 2003
Appeal from the Iowa District Court for Hancock County, John S. Mackey and Gilbert Bovard, Judges.
Gerald Rae Wait appeals from convictions on charges of sexual abuse in the third degree and incest. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall and Virginia Barchman, Assistant Attorneys General, and Karen Kaufman, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Gerald Rae Wait appeals from convictions on charges of sexual abuse in the third degree and incest. We affirm.
I. Factual and Procedural Background. The State charged Wait with multiple counts of sexual abuse in the second degree, one count of sexual abuse in the third degree, two counts of lascivious acts with a child, and one count of incest against his biological daughter, L.W. After Wait waived his right to a jury trial, a bench trial was held on only one count of sexual abuse in the third degree and one count of incest. The district court found Wait guilty on both counts.
Wait was sentenced on February 5, 2000, to a term of incarceration not to exceed ten years for sexual abuse and a term not to exceed five years for incest. The district court generally explained these terms of incarceration were imposed to promote deterrence and rehabilitation. The State urged the sentencing court to order the prison terms be served consecutively; Wait's counsel requested the court to order concurrent prison terms. In explaining its decision to impose consecutive terms of incarceration, the district court reasoned:
Given the circumstances of this case, the absence of any apparent acknowledgment on the part of the defendant, the sentences will be made to run consecutively rather than concurrently.
Wait contends the sentencing court abused its discretion in ordering consecutive prison sentences in this case. In particular, Wait asserts the district court's decision to impose consecutive sentences was improperly based upon his failure to admit guilt. Wait also claims his trial counsel was ineffective because he failed to investigate the charges adequately.
II. Scope and Standards of Review. Our review is for correction of errors at law. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000); State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). The decision of the district court to impose a particular sentence within the statutory limits "is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of inappropriate matters." State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). An abuse of discretion will not be found unless the defendant shows that such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).
III. Consecutive Sentences. A sentencing court's exercise of discretion is demonstrated on the record by its statement of reasons for a particular sentence. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). When the district court considers an improper factor in imposing sentence, the sentence must be vacated and the case remanded for resentencing. State v. Sinclair, 582 N.W.2d 762, 765 (Iowa 1998). Wait contends his sentences must be vacated because the district court considered his failure to acknowledge guilt as a factor in imposing consecutive prison sentences. The State asserts the district court properly considered Wait's denial of wrongdoing as evidence of his attitude and need for incarceration.
"The trial court must carefully avoid any suggestions in its comments at the sentencing stage that it was taking into account the fact defendant had not pleaded guilty but had put the prosecution to its proof." State v. Nichols, 247 N.W.2d 249, 256 (Iowa 1976). However, the sentencing court does not abuse its discretion when it considers a defendant's "lack of remorse or acknowledgement of the jury's finding of his guilt" as a factor relevant to rehabilitation. State v. Bragg, 388 N.W.2d 187, 192 (Iowa 1986). After discussing the importance of deterrence and rehabilitation in the determination of an appropriate sentence, the district court noted it attached "great significance to the presentence investigation report." That report disclosed "the defendant is completely denying having committed these offenses against his daughter." The report further emphasized that offenders demonstrating "such high levels of denial" are "at great risk to reoffend" and need "a highly structured setting where they can receive intensive . . . treatment." After imposing prison terms of ten and five years respectively, the court announced its decision that the sentences would run consecutively because of "the circumstances of this case [and] the absence of any apparent acknowledgement on the part of the defendant."
The sentences imposed in this case were within the applicable statutory limits. We are not persuaded that the sentencing court's reference to Wait's failure to make an "acknowledgment" was tantamount to an improper consideration of Wait's refusal to plead guilty and insistence that the State be put to its proof. We conclude instead that the reference expressed the sentencing court's belief that Wait's post-conviction unwillingness to acknowledge the court's finding of guilt significantly affected Wait's prospects for rehabilitation and, therefore, the appropriate length of the sentence. Thus, we conclude the sentencing court did not consider inappropriate matters in imposing consecutive sentences in this case. We affirm on this issue.
IV. Ineffective Assistance of Counsel Issue. Wait also contends his trial counsel's failure to investigate the victim's school and counseling records constituted ineffective assistance of counsel. Wait asserts he asked his trial counsel to discover the records to further the contention that the victim's mother fabricated the charge to facilitate her relocation with the victim outside the state of Iowa. The records in question are not part of the record, and we are unable to assess whether Wait was prejudiced by their absence. Furthermore, trial counsel has not been given an opportunity to explain why they were not discovered. Where the record on appeal is not adequate to adjudicate a claim of ineffective assistance of counsel, we preserve the issue for postconviction proceedings so the facts may be developed. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986). Accordingly, we reserve this issue for possible post-conviction proceedings.