IN THE COURT OF APPEALS OF IOWA
No. 14-0722 Filed November 12, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
COREY ALAN WICKERSHAM, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling
(plea) and Nancy S. Tabor (sentencing), Judges.
The defendant appeals his conviction and sentence after pleading guilty to
possession of marijuana with intent to deliver. AFFIRMED.
Jack E. Dusthimer, Davenport, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Linda J. Hines,
Assistant Attorneys General, Michael J. Walton, County Attorney, and Kelly
Cunningham, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., Potterfield, J., and Sackett, S.J.*
Tabor, J., takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
SACKETT, Senior Judge.
Corey Wickersham appeals his conviction and sentence after pleading
guilty to possession of marijuana with intent to deliver. He contends his trial
counsel was ineffective in failing to obtain a ruling on his motion to dismiss for
violation of his right to a speedy trial. He also contends the trial court abused its
discretion in sentencing him to a prison term.
I. BACKGROUND FACTS AND PROCEEDINGS.
On August 13, 2012, law enforcement officers who stopped Wickersham’s
vehicle for a traffic violation smelled the odor of fresh marijuana. A search of his
vehicle yielded the discovery of approximately two pounds of marijuana under
the front passenger seat of the vehicle. Wickersham was transported to the
police department for an interview where he was read his Miranda warnings, but
was told he was only being detained while an investigation was pending and was
not under arrest. Wickersham was released after agreeing to assist law
enforcement in an investigation. To that end, he participated in a controlled buy
of marijuana on August 18, 2013.
On November 27, 2013, the State charged Wickersham with ongoing
criminal conduct, possession of marijuana with intent to deliver, a drug tax stamp
violation, and conspiracy to commit a non-forcible felony. Wickersham moved to
dismiss the charges against him, arguing the speedy trial deadline had passed
because he was arrested on August 13, 2012. Before the court ruled on the
motion, Wickersham entered a plea agreement with the State wherein he agreed
to plead guilty to possession with intent to deliver marijuana in exchange for 3
dismissal of the other charges. The district court accepted Wickersham’s guilty
plea and sentenced him to a term of imprisonment of not more than five years.
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
Wickersham first contends his trial counsel was ineffective in allowing him
to plead guilty before the court ruled on his motion to dismiss. He argues that in
order for his guilty plea to be knowing and intelligent, the court should ensure the
accused is fully informed that any pending motions will be moot upon entry of a
guilty plea. Because he asserts there was a basis for dismissal of the charges
on speedy trial grounds, he claims the failure to make him aware he was waiving
his speedy-trial challenge by pleading guilty invalidates his waiver of rights.
We review ineffective-assistance-of-counsel claims de novo. State v.
Finney, 834 N.W.2d 46, 49 (Iowa 2013). Although such claims are normally
preserved for postconviction-relief actions, we will address them on direct appeal
if the record is sufficient to permit a determination of the merits of the claim. Id.
In order to succeed, Wickersham must show counsel failed to perform an
essential duty and he was prejudiced by this failure. See Rhoades v. State, 848
N.W.2d 22, 28 (Iowa 2014). To establish prejudice here, Wickersham must show
that he would not have pled guilty but for counsel’s breach of duty. Castro v.
State, 795 N.W.2d 789, 792 (Iowa 2011). If prejudice is not shown, we need not
address the question of whether counsel failed to perform an essential duty.
State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).
Wickersham cannot show he was prejudiced by counsel’s failure to first
obtain a ruling on his motion to dismiss before allowing him to plead guilty. His 4
motion to dismiss relied on the premise that he was arrested on August 13, 2013,
more than forty-five days before the State filed charges. See Iowa R. Crim. P.
2.33(2)(a) (requiring the State to indict a defendant within forty-five days of arrest
or the prosecution be dismissed unless good cause is shown or the defendant
waives the right to a speedy indictment). Although Wickersham was stopped on
this date, the evidence shows he was not arrested. Wickersham was stopped for
a traffic violation and transported to the police department, where he was told he
was being detained for investigatory purposes and was not under arrest. During
the interview, Wickersham was given the option to be arrested or cooperate with
the investigation. Wickersham opted to assist law enforcement and was
released. When law enforcement provides the accused with a choice to
cooperate, it “precludes the possibility of there being an ‘arrest.’” State v.
Johncon-Hugi, 484 N.W.2d 599, 601 (Iowa 1992). Because the evidence shows
Wickersham was not placed under arrest on August 13, 2013, he cannot show
his right to a speedy trial was violated or that his motion to dismiss would have
been granted.
III. SENTENCING CLAIM.
Wickersham also challenges his sentence, arguing he should have been
given probation as recommended in the presentence investigation report rather
than a term of incarceration. Because his sentence is within the statutory limits,
our review is for an abuse of discretion. State v. Seats, 865 N.W.2d 545, 552
(Iowa 2015). There is a strong presumption in favor of the district court’s
sentencing decisions, and we will only find an abuse of discretion where the court 5
acts on grounds clearly untenable or to an extent clearly unreasonable. State v.
Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). In order to overcome the
presumption of validity, our supreme court has required an affirmative showing
the sentencing court relied on improper evidence. Id.
In imposing a sentence, the court is to consider the nature of the offense,
the attending circumstances, and the defendant’s age, character, and
propensities and chances of reform. Id. at 554. Iowa Code section 907.5 (2013)
further requires the court consider the defendant’s prior records of convictions
and deferments of judgment, employment circumstances, family circumstances,
mental health and substance abuse history and treatment options available in the
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IN THE COURT OF APPEALS OF IOWA
No. 14-0722 Filed November 12, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
COREY ALAN WICKERSHAM, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling
(plea) and Nancy S. Tabor (sentencing), Judges.
The defendant appeals his conviction and sentence after pleading guilty to
possession of marijuana with intent to deliver. AFFIRMED.
Jack E. Dusthimer, Davenport, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Linda J. Hines,
Assistant Attorneys General, Michael J. Walton, County Attorney, and Kelly
Cunningham, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., Potterfield, J., and Sackett, S.J.*
Tabor, J., takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
SACKETT, Senior Judge.
Corey Wickersham appeals his conviction and sentence after pleading
guilty to possession of marijuana with intent to deliver. He contends his trial
counsel was ineffective in failing to obtain a ruling on his motion to dismiss for
violation of his right to a speedy trial. He also contends the trial court abused its
discretion in sentencing him to a prison term.
I. BACKGROUND FACTS AND PROCEEDINGS.
On August 13, 2012, law enforcement officers who stopped Wickersham’s
vehicle for a traffic violation smelled the odor of fresh marijuana. A search of his
vehicle yielded the discovery of approximately two pounds of marijuana under
the front passenger seat of the vehicle. Wickersham was transported to the
police department for an interview where he was read his Miranda warnings, but
was told he was only being detained while an investigation was pending and was
not under arrest. Wickersham was released after agreeing to assist law
enforcement in an investigation. To that end, he participated in a controlled buy
of marijuana on August 18, 2013.
On November 27, 2013, the State charged Wickersham with ongoing
criminal conduct, possession of marijuana with intent to deliver, a drug tax stamp
violation, and conspiracy to commit a non-forcible felony. Wickersham moved to
dismiss the charges against him, arguing the speedy trial deadline had passed
because he was arrested on August 13, 2012. Before the court ruled on the
motion, Wickersham entered a plea agreement with the State wherein he agreed
to plead guilty to possession with intent to deliver marijuana in exchange for 3
dismissal of the other charges. The district court accepted Wickersham’s guilty
plea and sentenced him to a term of imprisonment of not more than five years.
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
Wickersham first contends his trial counsel was ineffective in allowing him
to plead guilty before the court ruled on his motion to dismiss. He argues that in
order for his guilty plea to be knowing and intelligent, the court should ensure the
accused is fully informed that any pending motions will be moot upon entry of a
guilty plea. Because he asserts there was a basis for dismissal of the charges
on speedy trial grounds, he claims the failure to make him aware he was waiving
his speedy-trial challenge by pleading guilty invalidates his waiver of rights.
We review ineffective-assistance-of-counsel claims de novo. State v.
Finney, 834 N.W.2d 46, 49 (Iowa 2013). Although such claims are normally
preserved for postconviction-relief actions, we will address them on direct appeal
if the record is sufficient to permit a determination of the merits of the claim. Id.
In order to succeed, Wickersham must show counsel failed to perform an
essential duty and he was prejudiced by this failure. See Rhoades v. State, 848
N.W.2d 22, 28 (Iowa 2014). To establish prejudice here, Wickersham must show
that he would not have pled guilty but for counsel’s breach of duty. Castro v.
State, 795 N.W.2d 789, 792 (Iowa 2011). If prejudice is not shown, we need not
address the question of whether counsel failed to perform an essential duty.
State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).
Wickersham cannot show he was prejudiced by counsel’s failure to first
obtain a ruling on his motion to dismiss before allowing him to plead guilty. His 4
motion to dismiss relied on the premise that he was arrested on August 13, 2013,
more than forty-five days before the State filed charges. See Iowa R. Crim. P.
2.33(2)(a) (requiring the State to indict a defendant within forty-five days of arrest
or the prosecution be dismissed unless good cause is shown or the defendant
waives the right to a speedy indictment). Although Wickersham was stopped on
this date, the evidence shows he was not arrested. Wickersham was stopped for
a traffic violation and transported to the police department, where he was told he
was being detained for investigatory purposes and was not under arrest. During
the interview, Wickersham was given the option to be arrested or cooperate with
the investigation. Wickersham opted to assist law enforcement and was
released. When law enforcement provides the accused with a choice to
cooperate, it “precludes the possibility of there being an ‘arrest.’” State v.
Johncon-Hugi, 484 N.W.2d 599, 601 (Iowa 1992). Because the evidence shows
Wickersham was not placed under arrest on August 13, 2013, he cannot show
his right to a speedy trial was violated or that his motion to dismiss would have
been granted.
III. SENTENCING CLAIM.
Wickersham also challenges his sentence, arguing he should have been
given probation as recommended in the presentence investigation report rather
than a term of incarceration. Because his sentence is within the statutory limits,
our review is for an abuse of discretion. State v. Seats, 865 N.W.2d 545, 552
(Iowa 2015). There is a strong presumption in favor of the district court’s
sentencing decisions, and we will only find an abuse of discretion where the court 5
acts on grounds clearly untenable or to an extent clearly unreasonable. State v.
Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). In order to overcome the
presumption of validity, our supreme court has required an affirmative showing
the sentencing court relied on improper evidence. Id.
In imposing a sentence, the court is to consider the nature of the offense,
the attending circumstances, and the defendant’s age, character, and
propensities and chances of reform. Id. at 554. Iowa Code section 907.5 (2013)
further requires the court consider the defendant’s prior records of convictions
and deferments of judgment, employment circumstances, family circumstances,
mental health and substance abuse history and treatment options available in the
community and the correctional system, and “other factors as are appropriate.”
In sentencing Wickersham to incarceration, the sentencing court noted
Wickersham was thirty-three-years old and “had lots of opportunities to learn to
get out of [his] juvenile thinking.” The court noted Wickersham had the
opportunity to get the substance abuse treatment he needed on three separate
occasions over the years but failed to follow through. Finally, the court noted the
seriousness of the crime, stating this was not a crime involving “a couple
marijuana blunts or marijuana cigarettes” being passed around a party. Rather,
Wickersham was in possession of two pounds of marijuana, which he planned to
sell for money.
Wickersham argues the court “did not indicate, or otherwise show [it]
understand the timeline involved” because it failed to evaluate what had occurred
in the two years following the commission of the crime for which he was charged. 6
Cf. id. at 555 (noting that when resentencing a juvenile offender, it is proper to
consider a change in circumstances that occurs between the time of the original
sentence and the time of the resentencing). Although the sentencing court must
consider all the circumstances of a particular case, it is not required to
specifically acknowledge each claim of mitigation urged by the defendant, and
failure to acknowledge a particular circumstance does not mean it was not
considered. State v. Boltz, 542 N.W.2d 9, 10-11 (Iowa Ct. App. 1995). In
reviewing a sentence, we look to the see if the reasons articulated by the trial
court are sufficient to allow us to determine if an abuse of discretion occurred. Id.
at 11. The reasons provided by the sentencing court here are sufficient for us to
determine the court exercised its discretion in sentencing Wickersham to a five-
year term of incarceration without suspending the sentence. Accordingly, we
affirm.
AFFIRMED.