STATE OF IOWA, Plaintiff-Appellee, vs. TIMMIE JOE ALEXANDER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-805 / 04-1357
Filed December 28, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TIMMIE JOE ALEXANDER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson
and Eliza J. Ovrom, Judges.
Timmie Joe Alexander appeals his convictions for third-offense operating
while intoxicated, eluding, and driving while barred. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephen Japuntich,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, John P. Sarcone, County Attorney, and James Ward, Assistant County
Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
Timmie Joe Alexander was convicted of third-offense operating while
intoxicated (OWI), felony eluding, and driving while barred, with the sentences on
the first two convictions enhanced pursuant to the habitual offender statute, Iowa
Code section 902.8 (2003). He appeals, contending the trial court violated his
federal constitutional rights to due process and a fair trial in refusing to submit to
the jury the issue of whether certain prior convictions were felonies and that the
court erred in overruling his motion for judgment of acquittal because there was
insufficient evidence those prior convictions were felony convictions. He also
raises two claims of ineffective assistance of counsel. We affirm his convictions
and preserve one ineffective assistance claim for a possible postconviction
proceeding.
I.
BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following facts.
On the evening of January 2,
2004, Trooper David Overton observed a vehicle make an illegal U-turn on
Interstate Highway 35.
Overton pulled behind the vehicle and activated his
overhead lights and siren. However, instead of stopping the vehicle sped up and
led Overton on a chase for approximately sixteen miles at speeds of up to 100
miles per hour. During the chase the vehicle was being driven erratically and in
an unsafe manner.
Eventually the vehicle was stopped when “stop sticks”
perforated its tires. It was later determined the driver of the vehicle was the
defendant Alexander.
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Overton observed Alexander after he was finally stopped and saw that
Overton’s eyes were bloodshot and watery and he smelled of an alcoholic
beverage.
An open forty-ounce bottle of beer was found in his vehicle.
Alexander refused to perform field sobriety tests and refused to give a breath
sample. Overton requested a record check and found that Alexander’s license
was barred. On February 4, 2004, the State charged Alexander with OWI, third
offense, in violation of Iowa Code section 321J.2(2)(c), eluding or attempt to
elude a pursuing law enforcement vehicle, in violation of section 321.279(3)(b),
and operating a motor vehicle while barred, in violation of section 321.561. The
State filed an amended information on March 25, 2004, to clarify the State was
seeking to enhance the punishment on the OWI and eluding charges on the
grounds Alexander was an habitual offender under section 902.8.
Alexander’s jury trial was bifurcated.
eluding, and driving while barred charges.
He was first tried on the OWI,
Issues concerning his prior OWI
convictions and whether he was an habitual offender based on his prior
convictions were not submitted to the jury during this first trial. The jury found
Alexander guilty on the charges submitted to it.
Alexander was then given the chance to affirm or deny his prior
convictions. He denied both his prior convictions for OWI and that he had been
convicted of prior felonies. Thus, jury trial was held on the issue of Alexander’s
prior OWI convictions. The jury found he had incurred each of the five prior OWI
convictions alleged. Trial was then held on the issue of whether Alexander was
an habitual offender. The jury found Alexander was the person who had been
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convicted of OWI, third offense, on February 15, 1994 and burglary in the second
degree on April 9, 1987.
The court sentenced Alexander to serve indeterminate terms of
incarceration of fifteen years each on the OWI and eluding charges and two
years on the driving while barred charge. The court ordered the terms to run
consecutively. Alexander appeals, contending (1) the trial court erred in refusing
to submit the issue of the whether his prior convictions for third-offense OWI and
second-degree burglary were felonies to the jury, thereby violating his rights to
due process and a fair trial; (2) his trial counsel was ineffective for failing to
preserve this first issue; (3) the court erred in denying his motion for judgment of
acquittal because there was insufficient evidence his prior convictions for thirdoffense OWI and second-degree burglary were for felonies; and (4) his trial
counsel was ineffective for failing to object to the prejudicial nature of four of the
State’s exhibits.
II.
MERITS.
At trial Alexander’s counsel objected to the court’s proposed jury
Instruction Number 15 by stating,
I have a similar objection to Instruction Number 15. I thought the
state of the law was the State had to prove a felony. If they don’t, it
should be that they have to prove a felony and that should be a jury
question. So I object to Instruction Number 15 . . . based on the
fact there’s nothing in that instruction stating the same.
The trial court overruled the objection finding that the instruction was from the
“standard jury instructions,” it was appropriate, and that the State did prove
through the testimony of the two Clerks of Court that the offenses were felonies.
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On appeal Alexander contends the court violated his constitutional rights to due
process and fair trial under the principles set forth in Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), by
overruling his objection and not submitting to the jury the issue of whether his
prior convictions for third-offense OWI and second-degree burglary were
felonies.
“Issues must ordinarily be presented to and passed upon by the trial court
before they may be raised and adjudicated on appeal.”
Benavides v. J.C.
Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995).
Issues not raised
before the trial court, including constitutional issues, cannot be raised for the first
time on appeal. State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). We
require error preservation, even on constitutional issues. State v. Mulvany, 600
N.W.2d 291, 293 (Iowa 1999). This court does not recognize a “plain error” rule
which allows appellate review of constitutional challenges not preserved at the
district court level in a proper and timely manner. McCright, 569 N.W.2d at 607.
Well-settled principles following the tenor of rule [of civil
procedure 1.924] govern our review of objections to instructions.
We consider only those objections to instructions a party previously
raised with the district court. A party objecting to the court's
instruction must specify the subject and grounds of the objection. A
party's objection must be sufficiently specific to alert the district
court to the basis for the complaint so that if there is an error the
court can correct it before submitting the case to the jury. A party's
general objection to an instruction preserves nothing for review.
Additionally, a party is bound by the objection the party makes to
the district court's instructions and may not amplify or change the
objection on appeal.
State v. Maghee, 573 N.W.2d 1, 8 (Iowa 1997) (citations omitted).
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In the district court Alexander did not raise the Apprendi constitutional
issue that he now attempts to assert on appeal.
We conclude he has not
preserved this issue for our review, as he has raised for the first time on appeal,
and we will not further address it.
However, Alexander further claims that if we determine this issue was not
preserved for our review, as we now have done, then his trial counsel was
ineffective for failing to make a proper objection based on Apprendi. We review
claims of ineffective assistance of counsel de novo. State v. Martin, 704 N.W.2d
665, 668 (Iowa 2005). 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.” Wemark 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. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052,
2069, 80 L. Ed. 2d 674, 699 (1984); Ledezma v. State, 626 N.W.2d 134, 142
(Iowa 2001).
We conclude Alexander’s trial counsel had no duty, under either Apprendi
or state law, to request that the trial court submit to the jury the question of
whether Alexander’s two prior convictions were for felonies. First, in Apprendi,
the Supreme Court held that any fact which increases the penalty for a crime
beyond the prescribed statutory maximum, other than the fact of a prior
conviction, must be submitted to the jury and proved beyond a reasonable doubt.
Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. Because
Apprendi did not even require that the issue of whether Alexander had incurred
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prior convictions be submitted to the jury, it clearly did not require that the issue
of whether any prior convictions were felonies be submitted to the jury. Thus,
because Apprendi does not apply to issues concerning Alexander’s prior
convictions his trial counsel was not ineffective for not objecting to the instruction
on this basis. Counsel is not ineffective for failing to raise meritless issues or
make meritless objections. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999);
State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999); State v. Atwood, 342
N.W.2d 474, 477 (Iowa 1984).
Second, we note that under state law the only issue for the jury to decide
here was whether Alexander was the person who had been convicted of the
previous offenses of second-degree burglary and third-offense OWI. Under Iowa
Rule of Criminal Procedure 2.19(9) when the offender is subject to an increased
sentence due to alleged prior convictions, and the offender denies he or she is
the person previously convicted, the only question the jury need decide is the
identity of the offender as the person previously convicted. Any other objections
“shall be heard and determined by the court.” Iowa R. Crim. P. 2.19(9). Once
the jury has determined the defendant was the person previously convicted, the
question of whether the prior offenses were felonies is a legal determination to be
made by the court. See State v. Spoonmore, 323 N.W.2d 202, 203 (Iowa 1982)
(finding the trial court erred in permitting the jury to decide whether the prior
offenses alleged in support of sentencing enhancement were felonies); State v.
Smith, 282 N.W.2d 138, 142-43 (Iowa 1979) (holding that in habitual offender
proceeding the trial court did not err in instructing the jury the defendant had just
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been convicted of a class “C” felony; the only issue for the jury was defendant’s
identity as the person twice previously convicted of a felony, with questions of
whether the prior convictions were qualifying felonies to be determined by the
court); cf. State v. Buchanan, 604 N.W.2d 667, 668 (Iowa 2000) (treating the
issue of whether an offense was a felony for the purposes of the felon in
possession of a firearm statute as a legal question to be decided by the court).
Therefore, although Alexander’s trial counsel did in fact object to the
challenged instruction and request the court submit the issue of whether
Alexander’s prior convictions were felonies to the jury, he had no duty to do so
under Iowa law because the question calls for a legal determination to be made
by the court. Any such objection would therefore have been without merit. See
Greene, 592 N.W.2d at 30; Smothers, 590 N.W.2d at 724.
Alexander next claims the district court erred in denying his motion for
judgment of acquittal. He contends there was insufficient evidence he was an
habitual offender because there was insufficient evidence that two prior
convictions were for felonies. Our scope of review and many of the standards of
review that apply in sufficiency-of-the-evidence challenges are set forth in State
v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002), and need not be repeated here.
As set forth above, the only facts the State was required to prove to the
jury was that Alexander was the person convicted of the prior offenses of
second-degree burglary and third-offense OWI. Once it had done so it had met
its burden of proof. The question of whether those convictions were felonies
called for a legal determination to be made by the court.
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Nevertheless, there in fact was substantial evidence presented during the
habitual offender phase of Alexander’s trial from which the trial court could find
that the two prior convictions were for felonies. The State called the clerk of
court for Warren County who testified that Alexander was convicted of burglary in
the second degree in Warren County and that crime was a felony. Similarly, a
supervisor in the criminal division of the clerk of court’s office in Polk County
testified that Alexander was convicted of third-offense OWI in Polk County and
that crime was a felony. In addition, the State introduced the judgment entries for
these convictions, showing Alexander had been convicted of the second-degree
burglary in 1987 and the third-offense OWI in 1995. Thus, even assuming the
State was required to prove that those two prior convictions were felonies, we
conclude the evidence was sufficient to do so and was therefore sufficient to
support the enhancement of his sentences under the habitual offender provision
of the Code. The court did not err in denying Alexander’s motion for judgment of
acquittal.
Finally, Alexander claims his trial counsel was ineffective for failing to
object to four of the State’s trial exhibits (2B, 4C, 5C, and 7B) on the basis of
their prejudicial nature. The first three exhibits in question are applications by
Alexander for court-appointed counsel in some of his prior OWI cases, and the
fourth is an application for court-appointed counsel in his prior burglary case. All
were admitted without objection.
Generally, we do not resolve claims of ineffective assistance of counsel on
direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). We prefer to
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leave
ineffective-assistance-of-counsel
claims
for
postconviction
relief
proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001). “[W]e preserve
such claims for postconviction relief proceedings, where an adequate record of
the claim can be developed and the attorney charged with providing ineffective
assistance may have an opportunity to respond to defendant's claims.” Biddle,
652 N.W.2d at 203.
As set forth above, Alexander can only succeed on his ineffectiveness
claim by establishing both that his counsel breached an essential duty and that
prejudice resulted. Wemark, 602 N.W.2d at 814. No record has yet been made
before the trial court on this issue.
Trial counsel has not been given an
opportunity to explain his actions and the trial court has not considered and ruled
on the ineffectiveness claims. Under these circumstances, we pass this issue of
ineffective assistance of counsel in this direct appeal and preserve it for a
possible postconviction proceeding. See State v. Bass, 385 N.W.2d 243, 245
(Iowa 1986).
Accordingly, we preserve Alexander’s claim of ineffective
assistance of counsel regarding the specified exhibits for a possible
postconviction proceeding.
We conclude Alexander did not preserve error on the trial court’s alleged
violation of his constitutional rights under Apprendi.
However, we further
conclude his trial counsel was not ineffective for not making such an objection,
because Apprendi is not applicable to the question of prior convictions.
Furthermore, under Iowa law the question of whether a defendant’s prior
convictions were felonies for purposes of sentencing enhancement is a legal
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determination for the court and thus need not be submitted to the jury. We affirm
Alexander’s convictions and preserve his claim that his trial counsel was
ineffective for not objecting to the four specified State’s exhibits on the basis of
their alleged prejudicial nature for a possible postconviction proceeding.
AFFIRMED.
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