STATE OF IOWA, Plaintiff-Appellee, vs. DOUGLAS WAYNE NOBLE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-711 / 07-0317
Filed October 24, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DOUGLAS WAYNE NOBLE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Henry County, Cynthia H.
Danielson, Judge.
Defendant appeals his sentence after he pled guilty to manufacture of
methamphetamine. AFFIRMED.
Mark C. Smith, State Appellate Defender, and James G. Tomka, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney
General, and Darin Stater, County Attorney.
Considered by Huitink, P.J., and Vogel and Baker, JJ.
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VOGEL, J.
Douglas Noble appeals his sentence imposed for manufacture of
methamphetamine.
Noble asserts an ineffective-assistance-of-counsel claim,
alleging that the State failed to follow the plea agreement and his counsel failed
to object. We affirm.
We review claims of ineffective assistance of counsel de novo. State v.
Carter, 602 N.W.2d 818, 820 (Iowa 1999). In order to prevail on an ineffectiveassistance-of-counsel claim, a defendant must prove two elements:
(1) that
counsel failed to perform an essential duty, and (2) that prejudice resulted from
the failure. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674, 693 (1984). If the defendant fails to prove either element by a
preponderance of the evidence, we will affirm. State v. Greene, 592 N.W.2d 24,
29 (Iowa 1999). “Although these claims are typically preserved for postconviction
relief actions, we will address such claims on direct appeal when the record is
sufficient to permit a ruling.” State v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006)
(internal quotations and citations omitted).
We conclude that the record is
sufficient to address Noble’s claim of ineffective assistance of counsel.
Noble was charged with manufacture of methamphetamine in violation of
Iowa Code section 124.401(1)(b)(7) (2005). A defendant sentenced for violating
this section is required to serve a mandatory minimum sentence before being
eligible for parole. Iowa Code § 124.413. In this case, because it was Noble’s
first conviction under this particular section and it was a methamphetamine
offense, the sentencing court only had discretion to reduce the mandatory
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minimum sentence by a third if the court found mitigating circumstances and the
defendant pled guilty. Iowa Code § 901.10.
The County Attorney proposed a plea agreement to Noble, which was
evidenced by a letter dated August 23, 2006. The letter stated in part:
Prosecuting attorney will recommend that the following sentence be
imposed.
Imprisonment: 25 years, subject to mandatory minimum sentence
under section 124.413, without penalty enhancements as second or
subsequent offense under 124.411.
Fine: $5,000, plus applicable surcharges.
The letter did not specify a waiver of one-third of the mandatory minimum
sentence. After agreeing to the County Attorney’s proposal, Noble pled guilty.
Noble argues that the State agreed not to resist a one-third reduction in
the mandatory minimum sentence, but then failed to follow this agreement during
the sentencing proceeding. During the plea proceeding, the following record was
made:
THE COURT: Would you state the agreement for the record?
...
MR BERES [defense counsel]: The state has agreed to the
following . . . [a] 25-year sentence with one-third mandatory
minimum. In addition to that, they’ve agreed not to resist a
reduction of the mandatory minimum sentence of one-third which is
available when the defendant pleads guilty and there are mitigating
circumstances shown . . . . So what we would be taking is 25-year
sentence with a one-third mandatory minimum, and at the time of
sentence we will be requesting that one-third of the one-third
mandatory be waived, and the State has indicated that they
wouldn’t resist that if Mr. Noble pleads guilty and if he enters a drug
treatment program. So I think that’s our plea agreement. Oh, there
is one other matter, and that is the State has agreed that they
wouldn’t resist Mr. Noble remaining out on pretrial release pending
sentencing.
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THE COURT: Mr. Stater, [for the State] is that an accurate
statement of the plea agreement?
MR STATER: It is, Your Honor. To clarify, I’m not resisting his
request to remain out pending sentencing. I think it will better allow
us to effectuate the plea agreement if he can go get the drug
evaluation and enter treatment. He has been out since July. I don’t
think he is a flight risk.
The court proceeded to receive Noble’s guilty plea, incorporating into the
plea colloquy:
This involves a drug charge and as such involves a 180-day
revocation of your driving privilege, a mandatory requirement that
you serve one-third of your sentence before you are paroled or
eligible for parole. Mr. Beres has been discussing that in terms of
your plea agreement . . . . There is an additional potential fine of a
minimum $5,000 up to a maximum $100,000 fine as well. Now, is
that your understanding of all the penalties that could be imposed
by this Court?
Noble: Yes.
After a presentence investigation was completed, Noble was sentenced.
The record of the sentencing proceeding included the following:
MR STATER: Your Honor, I have had the opportunity to review the
presentence investigation. It does include the plea proposal dated
August 23, 2006 from the Henry County Attorney’s Office, which
recommended imprisonment of 25 years subject to mandatory
minimum sentence.
I note that the PSI concurs with that
recommendation. I would just confirm our recommendation today
as set forth in that plea proposal.
THE COURT: All right. Mr. Beres?
MR BERES: Your Honor, we would ask that the Court impose the
sentence that is required for a class B felony and suspend any fine.
Of course, there is a one-third mandatory minimum on this
sentence if Mr. Noble is committed to prison. We are asking the
court to waive one-third of that mandatory minimum fine for the
following mitigating circumstances: [several reasons listed] . . .
[then summarizing]. That may also be a mitigating circumstance
that would warrant waiving one-third of the mandatory minimum.
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...
THE COURT: Mr. Stater, does the State have any response to the
request for a waiver of one-third of the mandatory minimum fine?
MR STATER: Your Honor, on behalf of the State I must resist the
defendant’s request based upon the nature and seriousness of this
offense, as well as his arrest history as stated in the PSI.
THE COURT: And, Mr. Beres, let me make sure that I correctly
understand. The request is that the Court waive one-third of the
mandatory minimum fine under -MR BERES: No. If I said that, I misspoke, but I meant to request a
waiver of one-third the mandatory minimum sentence of
incarceration . . . . We’re asking that the first one-third be waived
for mitigating circumstances.
[The Court made no further comment nor did the State respond to
defense counsel’s corrected statement]
THE COURT: The Court has reviewed the court file, including the
presentence investigation and the plea agreement contained in
there, and in reaching a decision regarding sentencing, the Court
has considered, [several reasons listed] . . . . The presentence
investigation also notes, however, that while on pretrial release Mr.
Noble continually smoked marijuana, he lied to his probation officer,
he did not make his ADDS appointments, although he – apparently
he did immediately prior to sentencing follow through on that
requirement by reporting on January 18, 2007. He was also
arrested on two additional charges while released on this matter.
For those reasons the Court finds that the necessity for protecting
the community from further offenses by Mr. Noble outweighs his
need for rehabilitation or his potential for rehabilitation at this time.
The Court also notes that the State has recommended, as shown in
the plea agreement, that Mr. Noble be sentenced to the penalties
required by law for a class B felony under Section 124.401(1)(b)(7),
and the Department of Corrections has confirmed that
recommendation. The defendant, however, is requesting that he
be allowed a waiver of one-third of the mandatory minimum
sentence of incarceration pursuant to Code Section 901.10 of the
Code of Iowa. (emphasis added).
...
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THE COURT: The Court is specifically finding at this time that . . .
based upon your pretrial failure to comply with the terms and
conditions of pretrial release, the Court is going to deny your
request for a waiver of one-third mandatory minium on this
sentence.
The plea colloquy could have been clearer as to the exact agreement
between the State and Noble. However, the August 23 letter was referenced by
the State and the Court as the “plea agreement” during the sentencing hearing
and was incorporated into the PSI. The written plea agreement required the
State to recommend a prison sentence of twenty-five years and a fine of $5,000,
but clearly did not include an agreement as to a waiver of one-third of the
mandatory minimum sentence. During the plea colloquy, defense counsel stated
that the State would not resist Noble’s request that the court waive one-third of
the mandatory minimum sentence. During the sentencing colloquy the State did
recommend the written plea agreement, but did not respond to Noble’s request
that the court waive one-third of the mandatory minimum sentence.
Even if we were to find a breach of the plea agreement and a duty of
Noble’s counsel to object to such breach, we would affirm as we find no prejudice
to Noble on this record. Cf. State v. Horness, 600 N.W.2d 294, 299-300 (Iowa
1999) (vacating sentence after finding the State clearly breached the plea
agreement and resulting prejudice). The sentencing court thoroughly reviewed
and incorporated the relevant sentencing factors into the sentencing colloquy.
See State v. Goodson, 503 N.W.2d 395, 398 (Iowa 1993) (discussing that the
court owes a duty to the public, as well as to the defendant, in determining the
correct sentence); State v. Morrison, 323 N.W.2d 254, 256-57 (Iowa 1982)
(discussing that a sentencing decision must be made on an individual basis with
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the court considering the relevant factors which are unique to that individual and
circumstances); State v. Hildenbrand, 280 N.W.2d 393, 396 (Iowa 1979)
(discussing that the sentencing court should consider “all pertinent matters in
determining proper sentence, including the nature of the offense, the attending
circumstances, defendant’s age, character and propensities and chances of his
reform”). Therefore, regardless of Noble’s defense counsel’s failure to object to a
possible breach by the State of a plea agreement, we cannot conclude the court,
after carefully weighing all the relevant factors, would have waived one-third of
the mandatory minimum sentence.
AFFIRMED.
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