No. 04-0471.Court of Appeals of Iowa.
March 16, 2005.
Decisions without published opinions. Convictions Affirmed, Sentences Vacated and Case Remanded for Resentencing.
Appeal from the Iowa District Court for Muscatine County, James A. Weaver, District Associate Judge.
Joyce Davis appeals her convictions and sentences, following jury trial, for third offense operating a motor vehicle while intoxicated, interference with official acts, and driving while her license was revoked. CONVICTIONS AFFIRMED, SENTENCES VACATEDAND CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, Gary Allison, County Attorney, and Corie L. Shippee, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
MILLER, J.
Joyce Davis appeals her convictions and sentences, following jury trial, for third offense operating a motor vehicle while intoxicated (OWI), interference with official acts, and driving while her license was revoked. She contends the district court failed to give reasons for her sentence and that her trial counsel was ineffective. We affirm the convictions, vacate the sentences, and remand the case for resentencing. We preserve her ineffective assistance of counsel claims for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS.
On December 25, 2003, at approximately 9:30 p.m., Marc Penney was driving on Highway 61 South toward Muscatine when he encountered a Ford Expedition with Tennessee license plates driving in the same direction. Penney used his cell phone to call 911 and report that the Expedition was driving erratically, ran him off the road twice, and almost hit a tanker truck and a man on a motorcycle. He followed the vehicle to a McDonald’s parking lot. He called 911 again, notified officers where he and the Expedition were located, and gave a description of the vehicle. He also reported seeing a black female get out of the driver’s side door, switch places with the black male passenger, and then exit the vehicle a second time from the passenger’s side and go into the McDonald’s. The female was later identified at the defendant, Davis, and the male as Danny Hicks. Penney noted that the female “staggered” when she got out of the vehicle. Penney’s trial testimony was consistent with his 911 call.
Penney’s second 911 call was routed to Deputy Eric Furnas of the Muscatine County Sheriff’s Department, who arrived at the McDonald’s just after Davis went into the restaurant. After Davis came out of the restaurant Deputy Furnas told Davis he knew she had been driving, that her license was revoked, and he suspected she was intoxicated. Furnas placed Davis under arrest for driving while barred, handcuffed her, and placed her in the back of his squad car. He then returned to the Expedition to talk to Hicks. During Furnas’s contact with Hicks Furnas stated, generally, that he knew Davis, that she was not getting any more breaks from him because she had gotten too many already, and that she had never played it straight with him from day one. A videotape of Furnas’s conversation with Hicks in the parking lot was played for the jury at trial without objection from defense counsel. Furnas’s trial testimony was consistent with the videotape.
Davis was charged by trial information with third offense OWI, in violation of Iowa Code section 321J.2(1)(a) and (b) (2003), interference with official acts resulting in injury, in violation of section 719.1, and driving with her license revoked, in violation of section 321J.21.[1] The case proceeded to jury trial. Davis admitted at trial she was intoxicated at the time of her arrest, that her license was revoked, and that she resisted arrest. However, Davis denied she was driving the vehicle and both Davis and Hicks testified that Hicks, not Davis, was driving. Thus, the primary substantive issue presented to the jury was who had been driving the Expedition when Penney saw it being driven erratically.
After the case was submitted to the jury, and out of the presence of the jury, the court asked Davis if the allegations in the indictment for OWI that she had been convicted of “the same crime” in 2000 and 2002 were true. Davis replied, “Yes.” The court then asked if anyone had anything to add, and both defense counsel and the prosecutor indicated they did not. The jury found Davis guilty on the OWI and driving while revoked charges. It also found her guilty of the lesser included offense of interference with official acts.
At the sentencing hearing six weeks later both Davis and her attorney responded in the negative when asked by the court if they had anything they wanted to say prior to the court pronouncing sentence on the OWI conviction. The court sentenced Davis to a term of incarceration not to exceed five years and a fine and surcharge on the OWI conviction. It sentenced her to a term of ninety days and a fine and surcharge on both the interference with official acts and driving while revoked convictions. The court also ordered restitution for costs and attorney fees on Davis’s convictions. It ordered the latter two sentences to be served consecutively to the sentence imposed on the OWI charge. The court suspended the ninety days imposed on the driving while revoked conviction, and suspended sixty of the ninety days imposed on the interference with official acts conviction.
Davis appeals, contending the trial court erred in failing to give reasons for the sentences imposed and in failing to give reasons for ordering the sentences to be served consecutively. She also claims her trial counsel was ineffective.
II. MERITS.
A. Reasons for Sentences.
The State concedes, and we agree, that the district court failed to state any reasons whatsoever for the sentences imposed or for ordering some terms of incarceration to be served consecutively. Iowa Rule of Criminal Procedure 2.23(3)(d), formerly rule 22(3)(d), requires a sentencing court to “state on the record its reason for selecting the particular sentence.”State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000); State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). Although the reasons need not be detailed, at least a cursory explanation must be provided to allow appellate review of the trial court’s discretionary action. Id. A trial court must also give reasons for its decision to impose consecutive sentences. Jacobs, 607 N.W.2d at 690. Failure to state on the record the reasons for the sentence imposed requires the sentence be vacated and the case remanded for amplification of the record and resentencing. State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980); State v. Freeman, 404 N.W.2d 188, 191 (Iowa Ct.App. 1987).
Accordingly, we conclude Davis’s sentences must be vacated and the case remanded for resentencing.
B. Ineffective Assistance of Counsel.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel’s error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Davis claims her counsel was ineffective for failing to object to the videotape of the encounter between Deputy Furnas and Hicks on the grounds the tape contained comments that implied past criminal behavior on her part, her bad character, and her propensity for dishonesty. She contends these comments were not relevant to the issues in the case and were highly prejudicial to her. She also claims counsel was ineffective for failing to ensure that her stipulation to her prior OWI convictions was knowing and voluntary.
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) (citing State v. Kinkead, 570 N.W.2d 97, 103
(Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). “[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant’s claims.” Biddle, 652 N.W.2d at 203.
As set forth above, Davis can succeed on her ineffectiveness claims only by establishing both that her counsel failed to perform an essential duty and that prejudice resulted. Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on these issues, trial counsel has not been given an opportunity to explain her actions, and the trial court has not ruled on these claims. Under these circumstances, we pass these claims in this direct appeal and preserve Davis’s specified claims of ineffective assistance for a possible postconviction proceeding See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
CONVICTIONS AFFIRMED, SENTENCES VACATED AND CASE REMANDED FORRESENTENCING.