STATE OF IOWA, Plaintiff - Appellee, vs. LANCE EDWARD SUMMERS, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-780 / 08-0164
Filed October 1, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LANCE EDWARD SUMMERS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb,
District Associate Judge.
Lance Summers appeals from the sentence imposed following his guilty
plea to second-degree theft. AFFIRMED.
Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn, Boles,
Gribble, Parrish, Gentry & Fisher, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson and Robert
Glaser, Assistant Attorneys General, Wayne Reisetter, County Attorney, for
appellee.
Considered by Sackett, C.J., and Miller and Potterfield, JJ.
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SACKETT, C.J.
Lance Summers appeals from the sentence imposed following his guilty
plea to second-degree theft.
He contends the court abused its discretion in
imposing a prison term and in considering improper factors. He also contends
counsel was ineffective in not presenting mitigating evidence at the sentencing
hearing. We affirm.
I.
Background.
The appellant served as a probation officer with the Iowa Department of
Correctional Services first in district eight and later in district five.
When
probationers assigned to the appellant’s supervision paid financial obligations,
the appellant provided them a written receipt, but retained the funds for his
personal use. The theft was exposed when a probationer was charged with
violating probation by failing to pay court-ordered financial obligations.
probationer provided the receipts at the hearing.
The
Investigation revealed no
corresponding copy in the probationer’s file and no record the funds had been
paid to the State. The appellant was charged with second-degree theft both in
Lee County and Dallas County.
He pled guilty in Lee County. At the sentencing hearing he presented
testimony from several witnesses. The court sentenced the appellant to a term
not to exceed five years; ordered appellant to pay a fine, court costs, surcharges,
and restitution; and suspended the prison term, placing appellant on probation for
five years.
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He also pled guilty in the Dallas County proceeding. At the sentencing
hearing, defense counsel described the Lee County proceedings to the court,
then stated:
We have elected to forego repeating that process here this
morning of calling witnesses to testify under oath before the court.
Not because we were taking anything for granted here today or
because we just don’t want to put the time in, but frankly rather
because I believe it’s very much an open book what Mr. Summers
did, and how that’s impacted him, and the changes that he’s made
in his personal life and financial life to make sure that we are not
anywhere near this same sort of circumstance or territory again.
Counsel then detailed the testimony from the Lee County sentencing hearing, the
changes appellant had made, the restitution paid, and the results of the Lee
County hearing, that appellant’s prison sentence was suspended. Counsel made
an impassioned plea for a suspended sentence. The appellant also made a
brief, apologetic statement. Both in Lee County and Dallas County, the State
recommended incarceration.
The court ruled:
In determining the sentence to be imposed against the
defendant the court has taken into consideration the presentence
investigation, as well as the facts and circumstances of this case,
the recommendations of the county attorney, the recommendations
of the PSI, comments of the defense attorney, defendant’s age,
education, prior record, what I know of employment and family
circumstances.
I can’t help but think about this course of time while you were
a probation officer and one of your jobs as a probation officer is to
file reports of violations on the people who are answerable to you
because they have failed to live up to the terms and conditions of
their probation. They may have additional charges, or whatever
reason they have violated the terms of their probation, and you are
reporting that to the court, and you are probably in some instances
recommending that their probation be revoked, that they may go to
prison.
And in fact, I can’t help but wonder, it’s not been addressed,
and maybe this didn’t happen, and I hope it didn’t, as to whether or
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not the result of your taking these funds was that somebody got
revoked because a fee wasn’t paid or something wasn’t paid. But
you transferred, somebody else takes over the case, it’s not paid.
You are placed in a position of trust. I assume it’s the same
in every county. I rely on my probation officers at the very least to
not only treat their probationers fairly but tell me the truth. So
there’s a pretty high expectation I think for honesty and fair dealing
on the part of probation officers.
And I agree with the comments that there are different
professions that require a very high degree of reliability and
inherent trustworthiness that not only the courts but the public
places on them. And I’m not unaware of the reference to law
enforcement as it relates to this county, and more money missing
and so on. However, this involved a breach of trust that I think is
very significant. And, in effect, it’s like policing our own system.
Mr. Summers, you have pled guilty to the charge and have
been found guilty. The court therefore sentences you as follows:
The court sentences you to a term not to exceed five years with the
[department of corrections]. That will run concurrently with, to the
extent it can, I don’t know how that will work with the suspended
sentence in Lee County, but I’m not going to run it consecutively.
II.
Scope and Standards of Review.
We review sentences for correction of errors at law. Iowa R. App. P. 6.4;
State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).
Because the sentence
imposed does not fall outside statutory limits, our review is for abuse of
discretion.
State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998).
decisions are cloaked with a strong presumption in their favor.
Sentencing
State v.
Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). We will not reverse the decision
of the district court absent an abuse of discretion or some defect in the
sentencing procedure. Witham, 583 N.W.2d at 678. An abuse of discretion will
not be found unless we are able to discern that the decision was exercised on
grounds or for reasons that were clearly untenable or unreasonable. State v.
Loyd, 530 N.W.2d 708, 713 (Iowa 1995).
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When a challenge to the trial court’s sentencing decision implicates an
ineffective assistance of counsel claim, our review is de novo. State v. Tejeda,
677 N.W.2d 744, 754 (Iowa 2004). To establish ineffective assistance, appellant
must overcome a strong presumption of counsel’s competence. State v. Nucaro,
614 N.W.2d 856, 858 (Iowa Ct. App. 2000).
He has the burden to prove
counsel’s performance fell below “an objective standard of reasonableness” and
“the deficient performance prejudiced” him. Strickland v. Washington, 466 U.S.
668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is
shown by a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. State v. Atwood, 602 N .W.2d 775, 784
(Iowa 1999).
Typically, ineffective-assistance-of-counsel claims are preserved for
possible postconviction proceedings to allow a full development of the record
regarding counsel’s actions.
2001).
State v. DeCamp, 622 N.W.2d 290, 296 (Iowa
We address such a claim on direct appeal only where the record
establishes that either (1) as a matter of law the defendant cannot prevail on this
claim or (2) both prongs of the Strickland test are satisfied and a further
evidentiary hearing would not change the result. State v. Graves, 668 N.W.2d
860, 869 (Iowa 2003).
III.
Merits.
A.
Abuse of Discretion.
Appellant contends the court abused its
discretion “by relying on one factor at sentencing, the nature of the offense” and
not properly considering other factors. “Reasoned exercise of discretion is the
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hallmark of any proper sentencing procedure.” State v. Cooley, 587 N.W.2d 752,
754 (Iowa 1998). “Each sentencing decision must be made on an individual
basis, and no single factor alone is determinative.”
State v. Johnson, 513
N.W.2d 717, 719 (Iowa 1994). Judicial discretion imparts the power to act within
legal parameters according to the dictates of a judge’s own conscience,
uncontrolled by the judgment of others. See State v. Pappas, 337 N.W.2d 490,
493-94 (Iowa 1983).
In applying the abuse of discretion standard to sentencing
decisions, it is important to consider the societal goals of
sentencing criminal offenders, which focus on rehabilitation of the
offender and the protection of the community from further offenses.
It is equally important to consider the host of factors that weigh in
on the often arduous task of sentencing a criminal offender,
including the nature of the offense, the attending circumstances,
the age, character and propensity of the offender, and the chances
of reform. Furthermore, before deferring judgment or suspending
sentence, the court must additionally consider the defendant’s prior
record of convictions or deferred judgments, employment status,
family circumstances, and any other relevant factors, as well as
which of the sentencing options would satisfy the societal goals of
sentencing. The application of these goals and factors to an
individual case, of course, will not always lead to the same
sentence. Yet, this does not mean the choice of one particular
sentencing option over another constitutes error. Instead, it
explains the discretionary nature of judging and the source of the
respect afforded by the appellate process.
State v. Formaro, 638 N.W.2d 720, 724-25 (Iowa 2002) (citations omitted).
The sentence imposed is within the statutory bounds. See Iowa Code
§ 902.9(5) (setting forth the maximum sentence for a class D felony). Although
the appellant received a suspended sentence in Lee County for substantially the
same crime, the court in Dallas County appropriately exercised its broad
discretion in not suspending the sentence imposed. We recognize the court
found the appellant’s breach of trust “very significant,” but the court expressly
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considered the presentence investigation report and its recommendations, the
recommendations of the State and defense counsel, the appellant’s age,
education, prior record, employment, family circumstances, and the facts and
circumstances of this particular case. See Formaro, 638 N.W.2d at 724 (giving a
non-exclusive list of factors a court may consider). The court did not improperly
base its decision only on the nature of the offense, but used it as one, albeit
significant, factor it considered. See State v. McKeever, 276 N.W.2d 385, 387
(Iowa 1979). No single factor, including the nature of the offense, was solely
determinative of the sentence imposed. See id. We find no abuse of discretion.
B. Consideration of Improper Factors. The appellant contends the court
abused its discretion by considering improper factors in sentencing.
In the court’s statement quoted above, the court thought about the
possible effects the thefts may have had on probationers, such as revocation of
probation and serving time in prison. The court mused, “I can’t help but wonder,
it’s not been addressed, and maybe this didn’t happen, and I hope it didn’t . . . .”
The appellant argues there was no evidence presented at sentencing that might
verify the court’s concerns and the State did not argue for prison based on the
concerns the court mentioned. He acknowledges the minutes of testimony can
be considered by the court, but argues he “should have been given the chance to
rebut or challenge these factors relied on by the court when the court explained
the reasons for the sentence given.” He implies the court considered unproven
or unprosecuted offenses, which generally are improper factors to consider
“unless the defendant admits to the charges or there are facts presented to show
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the defendant committed the offenses.” See Formaro, 638 N.W.2d at 725. Here,
the appellant admitted theft from probationers under his supervision.
The
minutes of testimony reveal a violation of probation was filed against one
probationer, supervised by the appellant, for failure to pay financial obligations.
We will not infer improper sentencing considerations that are not apparent from
the record.
Id.
We conclude the court did not consider unproven or
unprosecuted offenses or other improper factors.
C.
Ineffective assistance.
The appellant contends defense counsel
rendered ineffective assistance in not introducing mitigating evidence at the
sentencing hearing, resulting in the prejudice of a harsher penalty. The test for
determining whether the appellant received effective assistance of counsel is
“whether under the entire record and totality of the circumstances counsel’s
performance was within the range of normal competency.”
See Snethen v.
State, 308 N.W.2d 11, 14 (Iowa 1981). The appellant must prove (1) counsel
failed to perform an essential duty, and (2) prejudice resulted. Id. The only
authority the appellant offers for the proposition that defense counsel has a duty
to present mitigating evidence at a sentencing hearing is an unpublished opinion
by this court. The State responds that defense counsel reviewed at length the
evidence provided by the witnesses at the Lee County hearing, so the court in
Dallas County had the same information before it.
Typically, ineffective assistance of counsel claims are preserved for a
possible postconviction proceeding to allow a full development of the record
regarding counsel’s actions.
State v. DeCamp, 622 N.W.2d 290, 296 (Iowa
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2001). We prefer to give defense counsel an opportunity to explain the reasons,
if any, for his acts or omissions. See State v. Lane, 743 N.W.2d 178, 183 (Iowa
2007). However, we address such a claim on direct appeal where the record
establishes that either (1) as a matter of law the defendant cannot prevail on this
claim or (2) both prongs of the Strickland test are satisfied, and a further
evidentiary hearing would not change the result. State v. Graves, 668 N.W.2d
860, 869 (Iowa 2003).
Defense counsel summarized for the court the events in the Lee County
hearing, noting how he
was put in the increasingly rare position of having too many
witnesses and having to tell people, no, we’re not going to bring
you all in to state over and over again that Lance is a good man,
that he’s a good father, that he’s active in his community, that this is
extremely out of character for him.
Counsel related the result obtained in Lee County and the court’s basis for
granting a suspended sentence. Counsel then said:
We have elected to forego repeating that process here this
morning of calling witnesses to testify under oath before the court.
Not because we were taking anything for granted here today or
because we just don’t want to put the time in, but frankly rather
because I believe it’s very much an open book what Mr. Summers
did, and how that’s impacted him, and the changes that he’s made
in his personal and financial life to make sure that we are not
anywhere near this same sort of circumstance or territory again.
Counsel described at length what the character witnesses said, noted the
changes the appellant had made in his life, and offered the appellant to the court
and the State for examination.
Counsel also invited the prosecutor and an
investigating officer who was at the sentencing hearing to correct any errors or
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misstatements counsel might make concerning the evidence introduced in Lee
County or concerning the appellant.
We conclude the record before us is sufficient to allow us to address this
claim on direct appeal. See State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990).
Counsel made a reasonable decision to provide the court with the information it
needed without calling a host of character witnesses. We cannot say this action
fell below “an objective standard of reasonableness.” See Strickland, 466 U.S. at
687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The court had all the same
information from counsel’s statement, the PSI, and the case file. The appellant
has not overcome the “strong presumption of his counsel’s competence.” See
Nucaro, 614 N.W.2d at 858. The appellant’s claim counsel was ineffective fails.
IV.
Conclusion.
The district court properly exercised its considerable discretion in
sentencing the appellant.
We conclude the court did not consider improper
factors in determining the sentence. The appellant has failed to demonstrate
defense counsel rendered ineffective assistance at the sentencing hearing.
Accordingly, we affirm the sentence of the district court.
AFFIRMED.
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