State of Iowa v. Gayle Lynn Howard

• Court: Court of Appeals of Iowa
• Decided: August 19, 2015
• Docket: 14-1073
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1073 Filed August 19, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

GAYLE LYNN HOWARD, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.

A defendant appeals her sentence following guilty pleas to possession of

marijuana with intent to deliver and a drug tax stamp violation. AFFIRMED.

Julie A. Ofenbakh of Ofenbakh Law Firm, P.L.L.C., Des Moines, for

appellant.

Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Linda Fangman, County Attorney, and Brad P. Walz, Assistant County

Attorney, for appellee.

Considered by Vogel, P.J., Tabor, J., and Goodhue, S.J.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2

GOODHUE, S.J.

Gayle Lynn Howard entered pleas of guilty to possession of marijuana

with intent to deliver and a drug tax stamp violation. She was sentenced to terms

of incarceration not to exceed five years on each charge, with the sentences to

run concurrently; probation was denied. She was sentenced to pay a fine with

the surcharge suspended, a law enforcement initiative fee, and a DARE fee as to

both charges. In addition her driver license was suspended. Howard has

appealed the sentences.

I. Background Facts

In imposing the sentence, the district court stated: “[T]his is your third

felony for involvement with drugs.” Both the prosecutor and defense counsel

informed the court that Howard had only one prior conviction involving drugs and

attempted to correct the court accordingly. Defense counsel asserted, “It was

just one offense date and one conviction for numerous charges.” The court

responded, “I think we’re saying the same thing, just in different terminology.”

The court then proceeded to refer to the presentence investigation (PSI) and

stated as follows:

You’ve got Ms. Howard that 1999 conviction here in Black Hawk County for conspiracy to manufacture methamphetamine ten years in prison. You’ve got possession of methamphetamine in May of 2000, 180 days in jail. Possession of marijuana, May 4, 2000, one year in jail. Possession of precursor May 4, 2000, ten years in prison, and that’s apparently the same as that conspiracy to manufacture. Possession of amphetamine, five years in prison. What am I missing there? Is that not a felony?

Regardless of the defense counsel’s and the prosecutor’s insistence that there

was only one prior drug felony, the court did not change the sentence it had 3

imposed. In fact, the PSI stated that on May 5, 2000, Howard was convicted and

sentenced for conspiracy to manufacture methamphetamine, possession of a

precursor, and possession of ephedrine—all three felonies—and various other

nonfelonious drug charges. The convictions and sentences all took place on the

same date, but there were three separate felonies. Howard has not challenged

the accuracy of the PSI.

II. Error Preservation

The concept of error preservation is not usually applicable to illegal or

procedurally defective sentences. State v. Woody, 613 N.W.2d 215, 217 (Iowa

2000).

III. Standard of Review

Sentences are reviewed for errors of law. State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002). If within the statutory framework, a sentence is cloaked

with a strong presumption in its favor. Id. A district court’s sentencing will be

overturned for an abuse of discretion that will only be found when the discretion

exercised is clearly untenable or unreasonable. Id.

IV. Discussion

Howard’s primary contention is that the district court relied on improper

sentencing factors. The court cannot rely on unproven charges unless they are

admitted. Id. at 725. The fact the convictions and sentences were all in one

proceeding does not diminish or effect the fact that there had been three prior

convictions. In order to be used to increase punishment, a conviction must

include an adjudication of guilt and a sentence. State v. Deng Kon Tong, 805

N.W.2d 599, 601-02 (Iowa 2011). There were three adjudications and three 4

sentences. The fact that sentencing for all three offenses took place on the

same date does not mean that there was only one conviction.

The complaining party has a heavy burden of affirmatively showing abuse

or prejudice in a trial court sentencing. State v. Pappas, 337 N.W.2d 490, 494

(Iowa 1983). Howard has failed to meet that burden. Howard has built her case

on a factual assertion that is demonstratively inaccurate and without merit.

AFFIRMED.