STATE OF IOWA, Plaintiff-Appellee, vs. EVELYN MARIE MORROW, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-587 / 06-0417
Filed August 9, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EVELYN MARIE MORROW,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Charles H. Pelton
(plea) and David H. Sivright (sentencing), Judges.
Defendant appeals from the sentence imposed following her guilty plea to
felony child endangerment. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney
General, Michael L. Wolf, County Attorney, and Ross Barlow, Assistant County
Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
2
MAHAN, J.
Evelyn Morrow appeals from the sentence imposed following her guilty
plea to child endangerment, a class “D” felony, in violation of Iowa Code sections
726.6(1)(a) and 726.6(6) (2005). 1 We affirm.
I. Background Facts and Proceedings
Morrow’s two-year-old daughter, Alexis, sustained severe burns over fortyfive percent of her body in December 2004. At the emergency room, Morrow told
medical personnel that she filled up the bathtub in her home with extremely hot
water while she and Alexis were in the bathroom. As the tub was filling, Morrow
heard her second daughter crying in another room. Morrow went to attend to the
other child and left Alexis alone in the bathroom.
Morrow returned to the
bathroom when she heard Alexis cry out, and found her sitting in the bathtub in
hot water. Morrow pulled her out of the water and took her to the hospital.
Alexis was airlifted to the University of Iowa Hospitals and Clinics (UIHC)
burn unit. Doctors who treated Alexis at the UIHC opined that based on the type
and severity of the burns, her injuries were inconsistent with Morrow’s version of
events.
The State charged Morrow with child endangerment, a violation of Iowa
Code sections 726.6(1)(a) or (b) and 726.6(5), a class “C” felony.
Morrow
entered into a plea agreement whereby she agreed to plead guilty to the lesser
1
See 2004 Iowa Acts ch. 1004, § 1; ch. 1151, §§ 3, 4 (amending section 726.6 by
adding a new subsection (4) and renumbering subsections (4) through (6) as (5) through
(7), thereby renumbering the classification of child endangerment as a class “D” felony
from subsection (5) to subsection (6)).
3
charge of child endangerment resulting in bodily injury, a class “D” felony, in
violation of sections 726.6(1)(a) and 726.6(6).
At sentencing, the State made no recommendation as to sentence.
Morrow objected to the “strong language” and “strong opinions” in a victim impact
statement written by the social worker assigned to the case, and requested a
suspended sentence with “strong provisions for probation.” Morrow admitted to a
lack of supervision over her child and negligence in failing to watch her, which
resulted in a severe burn.
The court sentenced Morrow to a five-year
indeterminate term of imprisonment, gave her credit for time served, and
imposed a $750 fine and court costs.
The court informed Morrow it would
reconsider the sentence in a year.
Morrow appeals, contending the district court relied upon improper factors
in determining her sentence. She also claims her trial counsel was ineffective for
failing to object to portions of the presentence investigation (PSI) report.
II. Improper Sentencing Factors
Morrow contends the district court abused its sentencing discretion by
considering the unproven accusation, denied by Morrow, that she intentionally
inflicted the injury to her daughter. The State argues Morrow failed to preserve
error on this issue.
We will assume without deciding that Morrow properly
preserved error and proceed to the merits.
Our review is for the correction of errors at law.
N.W.2d 756, 758 (Iowa 1998).
State v. Sailer, 587
We will not disturb a sentence on appellate
review unless the defendant demonstrates an abuse of discretion or a defect in
the sentencing procedure, such as the district court’s consideration of
4
impermissible factors. Id. at 758-59. An abuse of discretion is found only if the
court exercised its discretion on grounds or for reasons clearly untenable or to an
extent clearly unreasonable. Id.
“It is a well-established rule that a sentencing court may not rely upon
additional, unproven, and unprosecuted charges unless the defendant admits to
the charges or there are facts presented to show the defendant committed the
offenses.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). We will remand
the case for resentencing if the court improperly considered unprosecuted or
unproven additional charges. Id. In order to overcome the presumption the court
properly exercised its sentencing discretion, the defendant must affirmatively
show the court relied upon the unproven offenses. Sailer, 587 N.W.2d at 762.
At the sentencing hearing, the district court judge, who had not presided at
the plea proceeding, inquired as to Morrow’s admissions and the factual basis for
the plea. Morrow’s counsel informed the court she admitted to lack of proper
supervision and negligence in not properly watching the child. The district court
imposed the sentence and informed Morrow its reasons for the sentence were
based on what was contained in the PSI report. The PSI included an “official
version” of the circumstances surrounding the crime, which noted the doctors’
opinions as to how the burns occurred, and “defendant’s version” of events. The
PSI also included a discussion of Alexis’s health and the severity of the burns
she sustained, and Morrow’s background. The court continued:
The doctors who examined your daughter feel that the severe
burns suffered in this case – first, second, and third degree burns
over forty-five percent of her lower body – are inconsistent with the
statements given here.
5
You have admitted child endangerment by lack of proper
supervision. Your attorney and you have both indicated that you
need counseling. The juvenile court is focusing on some of these
needs – parenting skills. Maybe there are some mental health
issues here. I see that – bipolar, taking medication for that. Maybe
you need some coping skills for stressful situations.
But for all this work, I think a short period of incarceration is
appropriate here. I have the ability within one year to reconsider
your sentence. But I think that a short period of incarceration here
is necessary for you to get the best chance of success in the
programs that will be available to you for rehabilitation after your
release.
We owe a tremendous responsibility to our children to
protect them, and I think that is appropriate here – a short period of
incarceration.
We conclude Morrow has failed to affirmatively show the district court
relied on an unproven offense in sentencing her. 2 It is clear from the totality of
the district court’s statement that it was not relying on the doctors’ opinions in
determining its sentence. Rather, the court was merely noting a difference of
opinion as to how the injury occurred. The remainder of the court’s statement
focused on Morrow and her need for counseling, parenting skills, and mental
health treatment. The court indicated that incarceration would provide Morrow
the best opportunity for rehabilitation and stress the severity of the crime. The
court’s statement does not rise to the level of an affirmative showing of reliance
on an unproven offense. We affirm the district court’s sentencing decision.
2
While it is not clear from Morrow’s argument, we assume the “unproven
offense” to which she refers is child endangerment by an intentional act, a
violation of section 726.6(1)(b). We note, however, that the only difference in the
level of the offense charged and the offense to which Morrow pled was the
severity of the injury. Cf. Iowa Code §§ 726.6(5) (classifying child endangerment
resulting in serious injury as a class “C” felony) and 726.6(6) (classifying child
endangerment resulting in bodily injury as a class “D” felony). Therefore,
whether Morrow’s actions were “knowing” or “intentional” was irrelevant to the
level of the offense charged or to which she pled.
6
III. Ineffective Assistance of Counsel
We review claims of ineffective assistance of counsel de novo. State v.
Philo, 697 N.W.2d 481, 485 (Iowa 2005). To establish a claim of ineffective
assistance of counsel, a defendant must prove by a preponderance of the
evidence that (1) counsel failed to perform an essential duty and (2) prejudice
resulted therefrom. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Failure to
demonstrate either element is fatal to a claim of ineffective assistance. State v.
Polly, 657 N.W.2d 462, 465 (Iowa 2003). To prove prejudice, the defendant must
show a reasonably probability exists that but for counsel’s unprofessional errors,
the result of the proceeding would have been different. DeVoss v. State, 648
N.W.2d 56, 64 (Iowa 2002). We will resolve ineffective-assistance-of-counsel
claims on direct appeal “where the record is adequate to determine as a matter
of law that the defendant will be unable to establish one or both of the elements
of his ineffective-assistance claim.” State v. Reynolds, 670 N.W.2d 405, 411
(Iowa 2003).
Morrow argues she was denied effective assistance of trial counsel by
counsel’s failure to object to portions of the PSI report.
She contends the
information related to unproven offenses contained in the PSI influenced the
district court in its sentencing decision. Because we have concluded the district
court did not rely on unproven allegations when sentencing Morrow, she cannot
satisfy the prejudice prong of her ineffective-assistance-of-counsel claim.
Accordingly, we conclude her claim is without merit.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
