STATE OF IOWA, Plaintiff - Appellee, vs. JEFFREY ALLAN MOORE, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-921 / 08-0147
Filed December 31, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY ALLAN MOORE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,
Judge.
Jeffrey Moore appeals his convictions and sentences for willful injury
causing serious injury and going armed with intent. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Michael J. Walton, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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MILLER, J.
Jeffrey Moore appeals his convictions and sentences, following jury trial,
for willful injury causing serious injury and going armed with intent. He contends
the district court failed to exercise discretion by neglecting to consider
suspending the sentence for going armed with intent, and that his trial counsel
rendered ineffective assistance by failing to object to improper questioning and
comments by the prosecutor.
We affirm his convictions and sentences and
preserve his ineffective assistance of counsel claim for a possible postconviction
proceeding.
This case arises out of a shooting that occurred in Bettendorf on the night
of April 30, 2007.
On that night Matthew Auliff went to visit his friend, Jill
Vandewalle, at her apartment around 11:00 or 11:30 p.m. As they were talking in
the parking lot, Vandewalle noticed a man walking toward them and decided to
go back into her apartment. The man was later identified as the defendant,
Moore. According to Auliff, he was getting into his car to leave when Moore said
something to him. He could not hear what he said so he got out of his car to find
out what Moore wanted and noticed he was holding a gun. Auliff asked Moore
what the gun was for and Moore told him it depended on whether Auliff was a car
burglar. Auliff explained it was his car and asked, “What are you going to do?
Shoot me?” Auliff testified Moore then took two steps toward him, put the gun to
his face, asked him to tell him “what it feels like to die,” and then shot him.
Moore testified at trial that he was watching a movie in his house around
midnight when he heard noises outside his window that sounded like a male and
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female talking louder than normal for that time of night. Moore got his .38 caliber
revolver and went outside to see what was going on. He stated he took the gun
for personal protection because he thought it was a rough neighborhood, but had
no intention of harming anyone.
He saw a man and woman, Auliff and
Vandewalle, standing together by a car with their arms around each other.
Moore testified he got about ten feet away from the couple and asked them to
keep it down. Vandewalle then told Auliff to leave, hugged him, and walked back
toward her apartment. According to Moore, when he was about six feet away
Auliff told him to mind his own business and go back into his house. Moore said,
“o.k.,” and turned to go back toward his house. He claimed he got only a few feet
away when he realized Auliff was right behind him.
Moore testified that he
flinched when he felt Auliff’s arm on his shoulder and as he turned to push him
away he accidentally jerked the trigger and the gun fired. Moore claimed he saw
Auliff run away and did not think he was hurt.
The State charged Moore, by trial information, with attempted murder, in
violation of Iowa Code section 707.11 (2007) (Count I), willful injury causing
serious injury, in violation of section 708.4(1) (Count II), and going armed with
intent, in violation of section 708.8 (Count III).
Jury trial commenced on
December 10, 2007, and the jury found Moore guilty as charged on Counts II and
III, and of the lesser-included offense of assault with intent to commit serious
injury, in violation of sections 708.1 and 708.2(1), under Count I.
The district court merged the verdict for assault with intent to commit
serious injury with the conviction for willful injury causing serious injury for
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sentencing purposes and sentenced Moore to an indeterminate term of
imprisonment of no more than ten years on that conviction, and an indeterminate
term of imprisonment of no more than five years on the going armed with intent
conviction. The court ordered the sentences to be served consecutively.
Moore appeals, contending the court failed to exercise discretion when it
neglected to consider suspending the sentence for going armed with intent, and
that his counsel rendered ineffective assistance by failing to object to
prosecutorial misconduct in questioning Moore and in comments made during
closing argument.
We review a sentence imposed by the district court for correction of errors
at law. Iowa R. App. P. 6.4; State v. Grandberry, 619 N.W.2d 399, 401 (Iowa
2000).
Sentencing decisions of the district court are cloaked with a strong
presumption in their favor. Grandberry, 619 N.W.2d at 401. A sentence will not
be upset on appeal unless the defendant demonstrates an abuse of trial court
discretion or a defect in the sentencing procedure. Id.; State v. Gonzalez, 582
N.W.2d 515, 516 (Iowa 1998).
When a sentence is not mandatory, a district court must exercise
discretion in determining what sentence to impose. State v. Millsap, 704 N.W.2d
426, 433 (Iowa 2005). When a sentencing court has discretion, it must exercise
that discretion and failure to do so calls for vacating the sentence and remanding
for resentencing. State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). The district
court must demonstrate its exercise of discretion by stating upon the record the
reasons for the particular sentence imposed. State v. Thomas, 547 N.W.2d 223,
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225 (Iowa 1996). “A statement may be sufficient, even if terse and succinct, so
long as the brevity of the court's statement does not prevent review of the
exercise of the trial court's sentencing discretion.” State v. Johnson, 445 N.W.2d
337, 343 (Iowa 1989). “The sentencing court, however, is generally not required
to give its reasons for rejecting particular sentencing options.” Thomas, 547
N.W.2d at 225.
Here the reasons given by the district court for the imposition of
consecutive sentences of incarceration included the unreasonable amount of
force used, the severity of the crime, and the need to protect the community. We
conclude that although the court’s statement of reasons may be somewhat terse,
it is sufficient to show the court did in fact exercise its discretion and considered
proper factors in determining Moore’s sentences. The court was not required to
separately state reasons for rejecting concurrent sentences, or for rejecting a
suspended sentence and probation on the conviction for going armed with intent,
provided that it stated reasons for ordering the sentences to be served
consecutively, see id., which it did.
Moore argues the court’s statement during sentencing that “The Iowa
legislature has set it as one that requires mandatory incarceration” shows the
court improperly believed probation was not a sentencing option for the going
armed with intent conviction. However, we believe it is clear from the context in
which this statement was made that the court was referring to the willful injury
conviction, not the going armed with intent conviction. Thus, despite Moore’s
argument to the contrary, this statement does not demonstrate that the court
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mistakenly believed probation was not an option on the going armed with intent
conviction.
Moore has the burden of affirmatively demonstrating that the district court
abused its sentencing discretion. State v. Pappas, 337 N.W.2d 490, 494 (Iowa
1983). We conclude he has not met his burden to show that the court failed to
exercise available discretion.
Moore also claims his trial counsel rendered ineffective assistance by
failing to object to prosecutorial misconduct in violation of his constitutional right
to due process of law as set forth in State v. Graves, 668 N.W.2d 860 (Iowa
2003). More specifically, he claims that on cross-examination the prosecutor
improperly asked him to comment on the credibility of other witnesses by asking
him if the other witnesses had lied during their testimony, and during closing
arguments made remarks characterizing Moore as a liar.
In order to prevail on his claims of ineffective assistance of counsel, Moore
must show (1) counsel failed to perform an essential duty, and (2) prejudice
resulted. State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). We evaluate the
totality of the relevant circumstances in a de novo review. Id. at 392. 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 leave
ineffective-assistance-of-counsel claims for a possible postconviction relief
proceeding.
State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001).
Such a
proceeding allows an adequate record of the claim to be developed “and the
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attorney charged with providing ineffective assistance may have an opportunity
to respond to defendant’s claims.” Biddle, 652 N.W.2d at 203.
An adequate record is important because “[i]mprovident trial strategy,
miscalculated tactics, mistake, carelessness or inexperience do not necessarily
amount to ineffective counsel.” State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981).
A defendant is not entitled to perfect representation, but rather only that which is
within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531
(Iowa 2000).
Moore’s trial attorney has had no opportunity to explain his strategy and
actions in not objecting to the prosecutor’s challenged questioning and
statements. “Even a lawyer is entitled to his day in court, especially when his
professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa
1978). Accordingly, we preserve this claim of ineffective assistance of counsel
for a possible postconviction proceeding.
For the reasons set forth above, we conclude Moore has not shown that
the district court failed to exercise its available sentencing discretion when it
imposed consecutive terms of imprisonment. We preserve Moore’s specified
claim of ineffective assistance of counsel for a possible postconviction
proceeding.
AFFIRMED.
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