CODY LEVEKE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-222 / 08-0638
Filed April 22, 2009
CODY LEVEKE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
Cody Leveke appeals from the district court’s ruling denying his
application for postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, John P. Sarcone, County Attorney, and Frank Severino, Assistant
County Attorney, for appellee State.
Considered by Mahan, P.J., and Miller and Doyle, JJ.
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MAHAN, P.J.
Cody Leveke appeals from the district court’s ruling denying his
application for postconviction relief.
Leveke argued he was denied effective
assistance of counsel at his probation revocation hearing on remand. We affirm.
I. Background Facts and Proceedings.
Leveke pleaded guilty to incest in 2004 and was granted a deferred
judgment and placed on probation for two years. In State v. Leveke, 06-0137
(Iowa Ct. App. Aug. 23, 2006), Leveke challenged the revocation of his
probation, which was grounded upon two alleged violations.
This court
concluded one of the alleged violations was not adequately proved but there was
sufficient evidence to support the district court’s determination that Leveke
violated his probation when he was terminated from sex offender treatment on
November 19, 2005, as reported in a January 3 addendum. Id. We ruled:
Because the court’s dispositional decision was based on a
determination two violations occurred, we reverse the court’s
revocation of Leveke’s deferred judgment, and its imposition of
judgment and sentence, and remand this matter for a new
determination of these questions in light of our present decision.
Id.
On October 23, 2006, the remand hearing was held.
There was a
discussion at the beginning of the hearing as to how to proceed, and it was
determined that the attorneys would be allowed to argue their respective
positions.
During the State’s argument, the prosecutor began to refer to
incidents that occurred while Leveke was out on appeal bond. The court stopped
the prosecutor and had further discussion with counsel about if, and how, such
information would be presented. During the course of the discussion, Leveke’s
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counsel, Dean Stowers, stated he felt the court should hear all of the evidence
from both sides before making its decision. The court expressed its concern
about Leveke being “blindsided” by new allegations. The court stated:
What I understood from the Court of Appeals to be telling me was
that my determination that Mr. Leveke had violated the terms of his
probation by being discharged from the SOTP program was upheld,
the other violation was not, and my job then was to redetermine
whether or not to revoke the defendant’s probation and, if so, what
sentence to impose.
Stowers agreed with the court’s understanding of the remand order.
The
prosecutor summarized for the court the evidence the State intended to present,
to which Stowers responded, “I can deal with that.” The hearing proceeded with
testimony from probation officer Steven Naeve on behalf of the State, and from
Leveke’s mother and sister (the victim) on behalf of Leveke. Four exhibits were
offered in support of Leveke’s position: a letter indicating Leveke was enrolled in
university studying mechanical engineering; an academic transcript; an
enrollment certification; and a letter from Anthony Santiago, Ph.D., indicating
Leveke’s participation in therapy. Leveke was given his right of allocution and
had an opportunity to make any statement he wished to the court.
At the
conclusion of the hearing, the court revoked Leveke’s deferred judgment and
probation, stating:
The Court has previously determined that Mr. Leveke
violated the terms of his probation.
The Court finds again that the violation of that probation is
grounds for revocation of his probation and also grounds for
revocation of the deferred judgment that he was granted at the
outset.
The Court has once again reviewed the defendant’s
presentence investigation report, has taken into consideration the
age of the defendant, his prior record of convictions and
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deferments, which I think Mr. Stowers has accurately stated; his
employment and family circumstance, the nature of the offense that
was committed here and the harm to the victim, the victim’s desires
in this regard, the fact there was no weapon involved in this
offense, the defendant’s financial circumstances, his need for
rehabilitation and potential for that, the necessity for protecting the
community from further offenses by the defendant and others and
the other factors that are set forth in the presentence investigation
report; I guess the evidence that was presented here today as well,
although that really isn’t in the presentence investigation report.
Leveke was sentenced to five years in prison.
Leveke filed a postconviction relief application alleging his revocation
hearing counsel was ineffective. Leveke argued that attorney Stowers should
have either (1) not presented evidence at the October 23, 2006 hearing in order
to prevent the State from presenting evidence or (2) sought a continuance of the
hearing when the State indicated its intent to present additional information to the
court.
Leveke also alleged that the evidence presented by Stowers at the
October 2006 hearing should have been presented at the original revocation
hearing.
In Stowers’s November 14, 2007 deposition testimony, he explained why
he proceeded in the manner in which he did at the October 23 hearing. Stowers
believed that had he objected to the State’s evidence, Leveke might also be
precluded from introducing evidence. Stowers’s strategy was to make sure the
judge knew about the circumstances that weighed in favor of Leveke being
continued on probation including, the victim’s forgiveness, his family’s support,
and his status as an engineering student. Stowers believed delaying the remand
hearing would have been worse for Leveke. He also felt it would have been futile
to ask the judge to put Leveke back on probation without some new information
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that was favorable to Leveke. Moreover, the judge was aware of some of the
problems with Leveke during the time he was out on appeal bond because prior
hearings had been held.
The district court ruled that, in light of the broad scope of a probation
violation dispositional hearing, “[a]ll the evidence submitted by both the State and
Leveke at the October 23, 2006 hearing was relevant to the court’s decision.”
The court also found that “a continuance would have merely moved the date of
the hearing; it would not have prevented the evidence from being received.”
The evidence of Leveke’s conduct while out on appeal bond is
relevant to the district court’s sentencing decision, and would
almost certainly have been admitted at the later hearing if a
continuance had been sought and granted. In addition, there is no
evidence that any objection to this evidence would have been
successful in excluding the evidence.
The district court also concluded: “There is no reasonable probability that the
result of this proceeding would have been different even if Mr. Stowers had acted
in the manner Leveke now urges. Prejudice has not been established.” Finally,
the court rejected Leveke’s claim that had the evidence presented by Stowers at
the October 23, 2006 hearing been presented at the original revocation hearing,
the result would have been different. For these reasons, the district denied the
application for postconviction relief.
Leveke now appeals. He contends his revocation hearing counsel was
ineffective in failing to object to the “testimony regarding infractions occurring
after his initial sentencing and up to the time of his hearing upon remand.” He
also asserts the district court relied upon improper sentencing considerations in
revoking his deferred judgment and probation.
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II. Ineffective-Assistance-of-Counsel Claim.
Ordinarily, postconviction proceedings are reviewed for errors of law.
Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998).
However, we review
ineffective-assistance-of-counsel claims de novo. Id. We review an ineffectiveassistance-of-postconviction-counsel claim under a de novo standard of review
as well. Id.
To prevail on his ineffectiveness claim, Leveke must prove his counsel
failed in an essential duty and prejudice resulted. Id. at 402.
The ultimate test is whether under the entire record and totality of
the circumstances counsel’s performance was within the normal
range of competency. Improvident trial strategy, miscalculated
tactics, or mistakes in judgment do not necessarily amount to
ineffective assistance of counsel. The petitioner must overcome a
strong presumption of counsel’s competence, and a postconviction
applicant has the burden to prove by a preponderance of the
evidence that counsel was ineffective.
Id. (internal citations omitted).
Upon our de novo review, we—like the district court—conclude Leveke’s
ineffectiveness claim fails. Leveke contends Stowers should have objected to
the “testimony regarding infractions occurring after his initial sentencing and up to
the time of his hearing upon remand.” However, a sentencing court is allowed to
consider “all pertinent information.” See Iowa Code § 901.5 (2005).
Generally, courts may consider a variety of factors to justify
the imposition of a sentence, including rehabilitation of the
defendant, protection of the community from further offenses by the
defendant and others, Iowa Code § 901.5, the defendant’s age and
criminal history, the defendant’s employment and family
circumstances, the nature of the offense, and “such other factors as
are appropriate.” Iowa Code § 907.5.
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State v. Bentley, 757 N.W.2d 257, 266 (Iowa 2008); see generally State v.
Formaro, 638 N.W.2d 720, 724-25 (Iowa 2002) (enunciating relevant sentencing
factors and noting the “arduous task” of the sentencing court). For the reasons
stated by the district court, we conclude the complained of testimony was
relevant to the sentencing court’s task—to consider “all pertinent information.”
Moreover, Stowers determined that if he objected to the State’s evidence, the
favorable evidence he wished to introduce might also be kept out. While Leveke
might complain counsel’s strategy was ultimately unsuccessful, Leveke has not
overcome the strong presumption of counsel’s competence. His ineffectiveness
claim was properly rejected by the district court.
III. Improper-Sentencing-Factor Claim.
Leveke now also contends the sentencing court relied upon evidence
consisting of improper sentencing considerations.
He asserts the testimony
received on remand constituted unproven or unprosecuted offenses, which were
improperly considered in revoking his deferred judgment and probation.
“We will not reverse the decision of the district court absent an abuse of
discretion or some defect in the sentencing procedure.” Formaro, 638 N.W.2d at
724.
Moreover, we “will not draw an inference of improper sentencing
considerations which are not apparent from the record.” Id. at 725.
We reject Leveke’s characterization of the factors considered by the
district court in its sentencing decision.
We do not find the district court
considered any improper factors in imposing sentence. Furthermore, the district
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court did not abuse its discretion.
imposed. See id.
AFFIRMED.
Thus, we will not disturb the sentence
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