STATE OF IOWA, Plaintiff-Appellee, vs. STEVIE DEWAYNE HARRINGTON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-141 / 07-2066
Filed May 6, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STEVIE DEWAYNE HARRINGTON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bruce B.
Zager, Judge.
Stevie Dewayne Harrington appeals from convictions of possession of
cocaine base with intent to deliver while in the immediate possession or control
of a firearm, two counts of failure to affix a drug tax stamp, possession of an
offensive weapon, and possession of cocaine base with intent to deliver within
1000 feet of a public park. AFFIRMED IN PART, VACATED IN PART, AND
REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz,
Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Potterfield, JJ.
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POTTERFIELD, J.
We filed our opinion in this case on April 8, 2009, but subsequently
granted defendant-appellant Stevie Harrington‘s petition for rehearing. Our April
8, 2009 decision therefore is vacated and this opinion replaces it.
Stevie Dewayne Harrington appeals from judgment and sentences
entered upon his convictions of possession of cocaine base with intent to deliver
while in the immediate possession or control of a firearm within 1000 feet of a
public school, failure to affix a drug tax stamp, and possession of an offensive
weapon. He contends trial counsel was ineffective in various respects, that the
evidence was insufficient to prove the firearms sentencing enhancement, and
that the district court abused its discretion by relying upon an improper factor in
determining his sentences. For the following reasons, we affirm in part, vacate in
part, and remand for resentencing.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following facts. Defendant Stevie Harrington lived
with his mother, Sherry Harrington, and grandmother, Henrietta Harrington, at
1049 Linn Street. On January 20, 2007, Waterloo police officers Mark Meyer and
Corbin Payne went to 1049 Linn Street looking for Stevie Harrington and his
brother Christopher Harrington. Sherry Harrington gave the officers consent to
search the premises. Meyer and Payne completed a cursory search of the first
and second floors. In the northwest bedroom, Meyer found a box of sandwich
baggies and a plate sitting on the dresser; one of the baggies had a corner cut
3
out of it.1 Sherry received a telephone call, which Meyer was able to overhear.
Meyer was familiar with Stevie Harrington‘s voice and was able to hear him tell
his mother to remove the plate and the crumbs that were on the plate that were
sitting on the dresser.2
The officers left 1049 Linn Street and went to 424 Lane Street, a mile or
so away. Other officers also arrived at that address. Meyer watched from the
car as Christopher Harrington and a female got out of a car and walked up the
driveway toward the back of this house. Meyer approached Christopher and the
woman. An older vehicle was parked in the backyard of the residence, covered
in snow.
This car did not appear to have been moved in some time, but
Sergeant Payne saw footprints in the snow nearby. Payne looked behind the
rear tire and underneath the wheel well of that vehicle and located a loaded
revolver wrapped in a yellow sweater, and a rusty sawed-off shotgun, and a
cigarette box containing twenty-four rocks of crack cocaine wrapped in a towel.
Based on the condition of the area and the items, Payne concluded that the
items had recently been hidden under the vehicle.
During a second, March 18, 2007 search of the northwest bedroom at
1049 Linn Street, Officer Adam Galbraith found documents addressed to Stevie
Harrington in a drawer of the dresser. In that same drawer, a notebook was
found.
Galbraith testified that the notebook contained a reference to Stevie
Harrington‘s date of birth and entries that referred to selling narcotics. A wood
block with the inscription ―Lil‘ Chris‖ was hanging on the wall of this bedroom.
1
At trial, Meyer testified that crack cocaine is packaged in the corner of plastic bags.
Meyer testified that often crack cocaine is cut with a razor blade on a plate and
―crumbs‖ are left behind.
2
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Meyer interviewed Stevie Harrington at the police station after both the
January 25, 2007 and March 18, 2007 searches. Both interviews were recorded.
During the first interview, Meyer told Harrington his fingerprints were found on a
package containing crack cocaine and on the guns located at 424 Lane Street,
even though no fingerprints were found on any of the items. Harrington denied
having any drugs or weapons during the first interview.
He stated that the
baggies that the drugs were found in ―might have‖ been one of his bags.
Harrington stated that he told his brother that if there was something in the
house, to take it out. Harrington said he was concerned about his grandmother.
In the second interview, Harrington stated he had the guns a ―minute‖ and said
something about the rusty one. Meyer testified that to have something for a
―minute‖ means ―for a while‖ in street parlance. During the second interview,
Harrington admitted possessing the package containing eleven rocks of crack
cocaine. Meyer asked Harrington whether the dope Chris moved for him that
night was only Harrington‘s or whether some of it was Chris‘s.
Harrington
responded that it was ―his too . . . . He told you it was his, didn‘t he?‖
On March 28, 2007, the State charged Stevie Harrington with possession
of cocaine base with the intent to deliver while in immediate possession of a
firearm and/or an offensive weapon within 1000 feet of a public school (Count I);
two counts of failure to affix a drug tax stamp (Counts II and VI); unlawful
possession of an offensive weapon (Count III); and possession of cocaine base
with intent to deliver within 1000 feet of a public park (Count V). Counts V and VI
were based on events that occurred on March 18, 2007, the date of the second
search and the second interview. Harrington pleaded guilty to those counts prior
5
to trial. The remaining counts were based on the events of January 20, 2007, as
set forth above.
A jury trial began on October 3, 2007. Following the close of the State‘s
evidence, Harrington‘s counsel moved for judgment of acquittal, arguing there
was insufficient evidence that defendant possessed either the drugs or the guns.
The State responded there was sufficient evidence to support a finding of
constructive possession. The motion was overruled and the jury returned guilty
verdicts on Counts I, II, and III.
On November 16, 2007, the district court sentenced Harrington for a
period not to exceed thirty years on Count I; for a period not to exceed five years
on each of Counts II, III, and VI; and a period not to exceed ten years on Count
V.
The district court ordered the sentences on Counts I, II, and III to run
concurrently; the sentences on Counts V and VI to run concurrently; but the
sentences on Counts I and V to be served consecutively.
Harrington appeals. He contends his trial counsel was ineffective in failing
to make a sufficient motion for judgment of acquittal and in failing to object to the
jury instructions.
Harrington argues, in essence, the State failed to present
sufficient evidence that he possessed cocaine base while in the immediate
possession of a firearm; if his counsel did not adequately preserve that claim,
Harrington contends counsel was ineffective. He also contends the district court
abused its discretion by relying upon an improper factor in determining his
sentence.
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II. Discussion.
A. Ineffective Assistance Claim. We review ineffective-assistance-ofcounsel claims de novo. State v. Ondayog, 722 N.W.2d 778, 783 (Iowa 2006).
The right to assistance of counsel, under the Sixth Amendment to
the United States Constitution and article I, section 10 of the Iowa
Constitution, guarantees ―effective‖ assistance of counsel. To
prove a claim of ineffective assistance of counsel, [the defendant]
must show by a preponderance of the evidence that his trial
counsel failed to perform an essential duty and prejudice resulted.
[The defendant‘s] ineffective-assistance claim fails if he is unable to
prove either element of this test.
Id. at 784 (internal citations omitted).
Harrington contends trial counsel breached an essential duty by failing to
move for judgment of acquittal on grounds that the State had failed to: (1) prove
he possessed cocaine base with intent to deliver while in the immediate
possession of a firearm or offensive weapon, and (2) present any other evidence
to corroborate his admission that he possessed an offensive weapon.
1. Possession or Control of a Firearm While Participating in Offense of
Possession with Intent to Deliver. Harrington notes that defense counsel did
move for judgment of acquittal, but argues that in the event we find that counsel
did not adequately point out specific deficiencies in the evidence, it was due to
ineffective assistance.
We need not reach the ineffectiveness claim here
because we conclude counsel adequately preserved the insufficiency issue for
review. Counsel argued, in part:
I would make motions for judgment of acquittal on the counts
we‘re dealing with in the trial information in that there‘s been
insufficient evidence to generate a jury question that Mr. Harrington
possessed these items.
First of all, there‘s absolutely no evidence that Stevie
Harrington ever had any direct physical control over these items,
7
had them in his hands or in his immediate vicinity in any way. And
for constructive possession, it‘s significant that a person‘s presence
at a place where things are found or their proximity to the thing is
not enough to support a conclusion that they possessed it. In other
words, if Stevie Harrington had at some point been in the house
where these items were, if he‘d seen them, knew they were there,
that wouldn‘t necessarily be enough to support a conclusion that he
ever possessed them, that he ever had the ability to exercise
control over them, or the intention to exercise dominion or control
over them.
In this case we have a situation where the items were found
underneath the car . . . . So there‘s no – Stevie Harrington is not
anywhere near that address on [Lane] Street when these items
were found. There‘s no evidence he was ever at any point near
that address on [Lane] Street. There‘s nothing in the record to
reflect that.
The State is relying upon a notebook that was found in a
room a couple of moths later with some writings in it. The writings
themselves don‘t establish a whole lot. A person can write things in
first person, write song lyrics in first person, and be writing about
things you‘ve never done, never participated in. There‘s no
fingerprints on that notebook. Nothing, again to emphasize that Mr.
Harrington is any way confessing to any type of activities. There‘s
just writings in a notebook.
Mark Meyer talks about a couple of interviews that he did
with Mr. Harrington. And significantly, the only thing he talks about
during the interview in January is contacting his brother and telling
him if there‘s anything at the house to get it out of there. He denies
any knowledge of what these things are. He said he didn‘t have to
tell where to look. Chris knew where to look. And he didn‘t talk
about his being the person in control of any guns or any drugs at
this time. He just made some general comments to Meyer that he
called his brother and told him to get stuff out of the house.
During the interview in March, once again, Mr. Meyer is
asking Mr. Harrington about these guns. The only response that
Mr. Harrington makes when he‘s asking him, ―Where did they come
from? Did you get it from a guy? Did you get it from a friend?‖ The
only thing he says is that they‘re old . . . .
And then he talks about – he asks him a little bit later on
about the dope at the house that night. Once again Mr. Meyer talks
about there being 11 pills, and Mr. Harrington‘s response is,
―I don‘t know, something like that.‖ And once again, that‘s
information he‘s already been given back in January . . . .
That‘s not enough under possession. He could know his
brother has this stuff. He could be telling his brother, ―Hey, get your
stuff out of the house. It shouldn‘t be there. The cops are coming,‖
and not be in possession of it himself. And that is, in fact, what all
8
these general statements and the circumstances point to. They
point to Christopher Harrington, not to Stevie Harrington.
As noted above, in essence, Harrington argues there was insufficient
evidence to prove beyond a reasonable doubt that he was subject to the
enhancement for being in immediate possession or control of a firearm or
offensive weapon while participating in the offense alleged in Count I. We agree.
Iowa Code section 124.401(1)(e) (2007) provides for an enhanced
sentence for certain drug offenses if the person is in the ―immediate possession
or control of a firearm while participating‖ in the crime. The term ―immediate
possession‖ has a clear meaning. See State v. Mehner, 480 N.W.2d 872, 87879 (Iowa 1992). It refers to actual possession. Id. This possession must take
place while the person is ―participating‖ in the crime. Iowa Code § 124.401(1)(e).
A person is ―participating in a public offense,‖
during part or the entire period commencing with the first act done
directly toward the commission of the offense and for the purpose
of committing that offense, and terminating when the person has
been arrested or has withdrawn from the scene of the intended
crime and has eluded pursuers, if any there be. A person is
―participating in a public offense‖ during this period whether the
person is successful or unsuccessful in committing the offense.
Id. § 702.13.
The court instructed the jury that if it found Harrington guilty on Count I, it
then had to determine whether he had a firearm in his immediate possession or
control. To prove Harrington was in the immediate possession or control of a
firearm while possessing a controlled substance with intent to deliver, the court
instructed the jury in Instruction Number 20:
To have immediate possession of a firearm or offensive weapon
means to have actual possession of the firearm on or around one‘s
9
person. To have immediate control of a firearm or offensive
weapon means to have the firearm or offensive weapon in close
proximity so that the person can reach for it or claim dominion or
control over it. In order to prove that the Defendant had immediate
possession or control of the firearm or offensive weapon, the State
must prove that the Defendant had knowledge of its existence and
its general location.
Our supreme court has stated that ―the word possession has more than
one meaning and can be used interchangeably to describe actual possession
and constructive possession.‖ State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1998).
Immediate possession of a firearm means actual possession on one‘s person.
State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001); Eickelberg, 574 N.W.2d at
3.
Immediate control of a firearm may be established by showing that the
defendant was in such close proximity to the weapon as to claim dominion over
it. McDowell, 622 N.W.2d at 307. To show either immediate possession or
immediate control, it must be established that the defendant had knowledge of
the presence of the firearm. Id. Because the firearm at issue here was not
located on Harrington‘s person this is an immediate-control case rather than an
immediate-possession case.
In Eickelberg our supreme court found the defendants were in immediate
control of the guns located in their bedroom closet because ―[w]hile neither
defendant had actual possession of the weapons while they were in the
bedroom, they were ‗in such close proximity to the [weapons] as to claim
immediate dominion over them.‘‖ Eickelberg, 574 N.W.2d at 5 (quoting State v.
Rudd, 454 N.W.2d 570, 571 (Iowa 1990)). Here, however, the weapons were
found under a vehicle at 424 Lane Street, an address which the State failed to
10
connect with Stevie Harrington.
Thus, Harrington was not in ―such close
proximity to the weapons as to claim immediate dominion over them.‖ Id.
The State seeks to sustain the conviction on the inference that Harrington
―possessed the weapons in the same place where he kept his supply of drugs
and exerted dominion or control over them by directing their removal.‖ The State
contends such an inference provides sufficient nexus between possession of the
weapons and possession of the drugs with intent to deliver.
It has been said that ―[i]nferences and presumptions are a staple of our
adversary system of factfinding.‖ Ulster County Ct. v. Allen, 442 U.S. 140, 156,
99 S. Ct. 2213, 2224, 60 L. Ed. 2d 777, 791 (1979). However, we find that the
inference asserted by the State is nothing more than speculation and is not
sufficient to support the sentence enhancement.
See State v. Lambert, 612
N.W.2d 810, 813 (Iowa 2000) (―Evidence that only raises suspicion, speculation
or conjecture is not substantial.‖).
In Fullenwider v. State, 674 N.W.2d 73, 78 (Iowa 2004), our supreme
court discussed the sufficiency of the evidence on possession under the following
factual scenario:
Following police surveillance of an apartment occupied by
Brandy Johnson and her daughter, the police executed a search
warrant for the apartment. They found a digital scale, crack
cocaine, and Fullenwider—in bed with Johnson. The police also
found a gun under Fullenwider‘s side of the bed, although they
found no fingerprints on it. The cocaine was in a plastic bag on a
chair, still wet, and the bag together with the scale was pushed
under a table in the kitchen. LaShawn Williams, who is not
involved in this case, was lying on the floor five or six feet from the
cocaine. Johnson told the police that she and her daughter were
the only people occupying the apartment and that all of the
contents of the apartment belonged to her. Fullenwider, however,
admitted that a cell phone found on the table immediately above
11
the drugs was his. Testimony suggested the cocaine, which was
still wet, had been manufactured one and one-half to two hours
before the search.
The police surveillance had revealed that Fullenwider was a
frequent visitor to the apartment building where Johnson lived.
However, the search revealed no evidence that Fullenwider actually
lived there. The police found no paperwork to tie him to the
apartment and found no items of clothing (except the clothes by his
side of the bed) or other personal items belonging to Fullenwider.
Fullenwider, 674 N.W.2d. at 74-75.
The court concluded: ―Even when the
evidence is considered in the light most favorable to the State, we believe the
State failed to show the necessary control of the premises or the contraband
itself‖ to establish constructive possession. Id. at 78.
We find that the evidence of possession here is even more tenuous than
that in Fullenwider. The firearms were not found at the defendant‘s residence or
a place over which he had control. Instead, they were found under a vehicle at
424 Lane Street, a location to which Stevie Harrington was not linked. While
Harrington did admit having the firearms for a ―minute,‖ the State has not
established at what point that was or if it was at a time that Harrington also was
in possession of controlled substances with intent to deliver.
We conclude there was not sufficient evidence in the record to support the
trial court‘s submission to the jury of the sentence enhancement factor of
immediate possession or control of a firearm.
Resentencing on Count I is
therefore required.
2. Insufficient Corroboration of Confession that Harrington Possessed an
Offensive Weapon.
Harrington next asserts his conviction on Count III,
possession of an offensive weapon, must be set aside because trial counsel was
12
ineffective in failing to move for judgment of acquittal for lack of corroboration of a
confession or to seek a jury instruction relating to corroboration.
As previously noted, in order to establish trial counsel was ineffective, a
defendant must show both that trial counsel failed in an essential duty and
prejudice resulted. Ondayog, 722 N.W.2d at 784. Harrington cannot establish
the requisite prejudice on this claim as sufficient corroboration exists.
A defendant cannot be convicted by an out-of-court confession unless
accompanied by other proof that the defendant committed the offense. Iowa R.
Crim. P. 2.21(4); see also Opper v. United States, 348 U.S. 84, 93, 75 S. Ct. 158,
164, 99 L. Ed. 101, 108-09 (1954) (noting defendant‘s confession requires some
independent corroborating evidence in order to serve as basis for conviction).
The Iowa Supreme Court has noted that the rule of corroboration, and the court‘s
analysis of that rule, applies ―with equal force‖ to admissions and confessions.
State v. Polly, 657 N.W.2d 462, 466 n. 1 (Iowa 2003).
―Admissions made
subsequent to the commission of a crime are treated as though they are
confessions replete with the same inherent weaknesses of confessions.‖ Id. at
466. The nature of the corroborating evidence required for such admissions is
the same as the evidence required to corroborate confessions. Opper, 348 U.S.
at 91, 75 S. Ct. at 163, 99 L. Ed. at 108.
The State is not required to present evidence to corroborate every
element of the weapon charge against defendant. ―Corroboration need not be
strong nor need it go to the whole case so long as it confirms some material fact
connecting the defendant with the crime.‖ Polly, 657 N.W.2d at 467 (citation
omitted).
The ―other proof‖ does not have to prove the offense beyond a
13
reasonable doubt or even by a preponderance of the evidence. Id. Instead, the
other proof ―merely fortifies the truth of the confession, without independently
establishing the crime charged.‖
Id. (citation omitted).
―‗Other proof‘ ‗must
support[ ] the essential facts admitted sufficiently to justify a jury inference of their
truth.‘‖ Id. (citation omitted).
In the case at bar, there is sufficient evidence to corroborate defendant‘s
admissions to Meyer and, therefore, there is sufficient evidence to support
defendant‘s conviction for possession of an offensive weapon. Harrington stated
he had the firearms for a ―minute‖ and stated the shotgun was ―old.‖
The
shotgun found under the vehicle at 424 Lane Street was in rusty condition.
Harrington‘s admission that he possessed the firearm is corroborated by other
evidence, thereby justifying a jury inference as to the truth of the statements.
Under these circumstances, Harrington cannot establish he was prejudiced by
trial counsel‘s failure to move for judgment of acquittal on the ground of
insufficient corroboration.
Moreover, Harrington argues his trial counsel was
ineffective for failing to request a jury instruction on corroboration. Harrington
has not asserted his confession was false or inaccurate.
See id. at 468.
Harrington does not urge and we can find no circumstances present which would
indicate the unreliability of his confession.
Given these facts, there is no
reasonable probability the result would have been different if the jury had
received a corroboration instruction. Id. In sum, Harrington has not proven the
prejudice prong of his ineffective-assistance-of-counsel claim for his attorney‘s
failure to request an instruction on corroboration; therefore his claim with respect
to Count III must fail.
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3. Failure to Request Limiting Instruction.
Harrington next asserts his
convictions must be set aside because trial counsel was ineffective in failing to
request a limiting instruction on the proper use of the recorded interviews.
Harrington contends ―Meyer‘s statements and questions made during the
interview are hearsay,‖ which Harrington then asserts trial counsel ―had a duty to
request an instruction that informed the jury that Meyer‘s statements and
questions were not evidence and should not be considered for their truth and
only the defendant‘s responses are evidence.‖
Harrington concedes that Meyer‘s questions and statements were
admissible to place Harrington‘s answers in context. See Iowa R. Evid. 5.106.
Harrington complains of two specific statements by Meyer: in the first interview,
Meyer‘s statement that Harrington told Chris to go get the guns out of the house;
in the second interview, Meyer‘s statement, ―I mean, I know the guns were yours,
I knew the dope was yours, that‘s what I‘m saying.‖ Harrington asserts that trial
counsel had a duty to request an instruction that informed the jury that Meyer‘s
statements were not evidence and should not be considered for their truth and
only the defendant‘s responses are evidence.
Harrington cites Iowa Rule of
Evidence 5.105 as authority for such a duty.
Pursuant to Iowa Rule of Evidence 5.105, when evidence is admissible for
one purpose, but not for another, the district court shall, upon request, restrict the
evidence to its proper scope and give a limiting instruction. The rule itself does
not impose the duty Harrington claims. Harrington refers us to an unpublished
decision of this court (which is not controlling legal authority, see Iowa R. App. P.
15
6.14(5)) wherein we found error when a trial court refused to give a requested
instruction. Nothing in the case establishes the duty Harrington propounds.
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); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987).
―Improvident 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) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54
(Iowa 1972)).
To warrant a finding of ineffective assistance of counsel, the
circumstances must include an affirmative factual basis demonstrating counsel‘s
inadequacy of representation. Aldape, 307 N.W.2d at 42.
Even if we would presume that the failure to request a limiting instruction
breached an essential duty, Harrington has failed to establish that but for such an
error, the result of the proceeding would have been different. Ondayog, 722
N.W.2d at 783. ―[I]neffective-assistance-of-counsel claims based on failure to
preserve error are not to be reviewed on the basis of whether the claimed error
would have required reversal if it had been preserved at trial.‖ State v. Maxwell,
743 N.W.2d 185, 196 (Iowa 2008). Harrington has not shown how the outcome
of the proceeding would have been different had the limiting instruction been
requested.
Instead, relying upon the previously noted unreported ruling, he
simply argues that prejudice should be presumed.
We reject the invitation.
Harrington has not established he was prejudiced by trial counsel‘s failure to
request a limiting instruction as to the use of Meyer‘s purported hearsay
statements during the interviews.
16
B. Improper Sentencing Factors. Harrington challenges the imposition
of consecutive sentences on Counts I and V on grounds the district court relied
upon an improper factor.
―[T]he decision of the district court to impose a particular sentence within
the statutory limits is cloaked with a strong presumption in its favor, and will only
be overturned for an abuse of discretion or the consideration of inappropriate
matters.‖ State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002) (citation omitted).
―[A]n abuse of discretion will not be found unless the defendant shows that such
discretion was exercised on grounds or for reasons clearly untenable or to an
extent clearly unreasonable.‖ State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).
A sentencing court‘s exercise of discretion is demonstrated by its statement of
reasons for a particular sentence on the record. See, e.g., Iowa R. Crim. P.
2.23(3)(d); Loyd, 530 N.W.2d at 714.
In order to overcome the strong
presumption in favor of sentencing decisions, ―there must be an affirmative
showing the court relied on [] improper evidence.‖ State v. Dake, 545 N.W.2d
895, 897 (Iowa Ct. App. 1996); see also State v. Jose, 636 N.W.2d 38, 41-43
(Iowa 2001); State v. Ayers, 590 N.W.2d 25, 28-29 (Iowa 1999).
The district court ordered the sentences on Counts I and V to run
consecutively.
The court stated the following reason for the consecutive
sentences:
Likewise, with the instance that we had in January, I believe
I‘m correct, and in the instance that we have in March, if my dates
are correct, we have two separate and distinct instances where
there‘s significant drugs involved, there‘s also weapons involved.
....
Also, the Court has to note whether there are weapons or
force actually used. Obviously, we don‘t have the firing of a
17
weapon or otherwise; but we do have weapons involved in both of
these separate and distinct instances, which could always under
the circumstances lead to very negative circumstances.
However, the evidence presented at the guilty plea proceeding included no
reference to Harrington possessing a weapon while committing the crimes
alleged in Counts V and VI.
The State concedes that resentencing is required because the court
erroneously stated that weapons were involved in both Counts I and V.
III. CONCLUSION.
We find there was not sufficient evidence in the record to support the trial
court‘s submission to the jury of the sentence enhancement issue of immediate
possession or control of a firearm and, therefore, resentencing on Count I is
required. There is sufficient evidence to corroborate defendant‘s admission of
possession of an offensive weapon and Harrington‘s ineffective assistance claim
with respect to Count III consequently fails. Harrington has not established his
claim that trial counsel was ineffective in failing to seek a limiting instruction. The
district court erroneously stated that weapons were involved in both Counts I and
V in imposing consecutive sentences and thus the sentences must be vacated.
We remand for resentencing consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.
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