Opinion
No. 2-721 / 00-0759
Filed February 12, 2003
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
Defendant appeals her resentencing to two concurrent five-year terms of incarceration and claims further ineffective assistance of trial counsel. AFFIRMED.
Raymond D. Perry, Des Moines, and Marta Luz Zanders, pro se, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Considered by Habhab, Harris, and Snell, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
On July 24, 1998, the defendant was found guilty by a jury of possession of a controlled substance with intent to deliver in violation of Iowa Code section 124.401(1)(d) (1992) and failure to affix a drug stamp in violation of Iowa Code section 453B.12. The trial court entered judgment and sentenced the defendant to two concurrent five-year terms of incarceration.
The defendant appealed that judgment and sentences. In an unpublished opinion, the supreme court (1) affirmed the defendant's conviction but preserved for a possible postconviction action her claim of ineffective assistance of counsel and (2) vacated the sentence imposed and remanded the case to the district court for resentencing, finding the district court when sentencing the defendant relied on additional, unproven and unprosecuted charges in ongoing drug trafficking.
On remand, the district court again sentenced the defendant to two concurrent five-year terms of incarceration. In this appeal from the resentencing, the defendant again claims the district court relied on improper sentencing considerations and further claims her trial counsel rendered ineffective assistance by failing to challenge inaccuracies in the presentence investigation report. 1. We turn first to the appellant's claim the district court relied on improper sentencing considerations. Our review is for correction of errors at law. State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). A sentence imposed by the district court will be overturned only if defendant shows an abuse of discretion or a defect in the sentencing procedure. Id.
As noted, the supreme court in the defendant's first appeal preserved her claim of ineffective assistance of counsel for a possible postconviction action. The appellant's attorney, in Division I of his present brief asserts: "[F]or the purpose of continuing to preserve the claim of ineffective assistance of trial counsel, Appellant hereby reasserts the claim and incorporates by reference that section (Division I) of her brief in that appeal."
We have before us the brief filed by defendant's appellate counsel and defendant's pro se supplemental brief and supplemental reply brief. The brief filed by defendant's appellate counsel claims the court improperly considered the juvenile records of defendant's children and inaccuracies regarding the amount of drugs involved and the extent of defendant's drug addiction. The defendant, in her pro se briefs, repeats those claims and, in addition, claims the sentencing court erred in denying her request for a deferred judgment. Further, she claims the sentence imposed constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.
To support her claim that the sentencing judge improperly considered the juvenile records of her children, she directs to our attention comments made by the prosecutor during the second sentencing proceedings. As it relates to those comments, the trial court had this to say:
I want to make sure we don't pollute the issues too much with what we're dealing with here, and so I'm going to make it clear that the sentence I impose isn't going to have — isn't going to be affected too much by what the situation may have been with Ms. Zanders' sons. It may be relevant for some purpose, because you've given me letters, Mr. Hearity, about their progress and how well they're doing. So if I am presented with some information to the contrary, as I understand it, there was a marijuana offense that [one of the sons] admitted to, whatever the disposition is doesn't really matter to me. I think the salient fact would be that he had marijuana in his possession and he admitted to that. Apparently there was some situation with [another of defendant's sons] which didn't result in a conviction. I'll give that very little consideration.
The appellant also directs to our attention other references to her children during the sentencing process. We have reviewed each of those assertions as contained in counsel's brief and in the pro se briefs. In doing so, we have considered each in the context of the entire sentencing proceedings.
From our review of the record, we find no abuse of discretion by the trial court nor do we find the trial court considered impermissible factors. The trial court was careful in considering only those factors that were appropriate. When defining its reasons for imposing the sentence that it did, the trial court stated, "I didn't consider any unproven acts of misconduct in determining an appropriate sentence, and I'm not doing that now." We affirm as to this issue.
The court, when addressing the defendant, clearly noted:
Ms. Zanders, in considering all of those factors, I come up with the same decision that I made previously, and I did not previously base my decision on any impression that — I didn't base it on any unproven acts. I know that the language that I used, and when I reviewed the transcript, I can see how the appellate courts determined that, well, perhaps I did that and so we need to set it back down for resentencing. However, my impression overall of the case is the same as it was then. I didn't consider any unproven acts of misconduct in determining an appropriate sentence then, and I'm not doing that now.
2. The defendant next claims that she was denied her constitutional right to effective assistance of counsel. This claim concerns the use of the presentence investigation report used at the time of resentencing.
Ineffective assistance of counsel claims involve a constitutional challenge and therefore are reviewed de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). Ordinarily, ineffective assistance of counsel claims are preserved for postconviction proceedings. These claims may be resolved on direct appeal, however, when the record adequately addresses the issue. Id. at 865. Here, the record is adequate to decide the issue.
A defendant claiming ineffective assistance of counsel must prove both of the following elements: (1) counsel failed to perform an essential duty, and (2) defendant was prejudiced by counsel's error. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). To prove that counsel failed to perform an essential duty defendant must "overcome the presumption counsel is competent and show counsel's performance is not within the range of normal competency." State v. Thornton, 498 N.W.2d 670, 675 (Iowa 1993).
As noted under Brooks, the defendant must also prove that she was prejudiced by her counsel's error. In this respect, in order to prove prejudice, defendant must show that "but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 698 (1984).
Defendant claims her trial counsel rendered ineffective assistance because he failed to challenge certain inaccuracies in the presentence report. Those inaccuracies are based on several assertions that relate to defendant's level of education, the marital status and address of defendant's parents, defendant's eviction from her home, and defendant's employment history and recent work experience.
We conclude that the defendant has failed to show that those errors in the presentence investigation report resulted in prejudice to her. Some were clarified by defense counsel at the time of sentencing. There is the comment by defense counsel that the defendant is teaching classes and remains employed and that she will be teaching throughout the summer and next year. There is the further comment by defense counsel that she is living successfully with her family. We find the defendant's claim of inaccuracies to be nonprejudicial.
We find no error under this division.
3. The defendant, in her pro se brief, next claims the court erred in declining her request for a deferred judgment. She argues the sentence imposed violates her constitutional rights and that the sentence imposed constitutes cruel and unusual punishment.
We have reviewed the record as to these issues and find that the court considered the appropriate factors under Iowa Code section 901.5 and stated on the record its reasons for the sentence selected, as required by Iowa Rule of Criminal Procedure 2.23(3)( d). It is within the court's discretion to determine whether a deferred judgment is appropriate. State v. Lloyd, 530 N.W.2d 708, 713 (Iowa 1995). Our supreme court has determined that the punishment allowed by statute for possession of a controlled substance with intent to deliver does not violate constitutional standards prohibiting cruel and unusual punishment. State v. Boothe, 284 N.W.2d 206, 209 (Iowa 1979). We find no error here.
We have considered all arguments set forth in defense counsel's brief and defendant's pro se brief whether touched upon in this opinion or not and find them to be without merit.