IN THE COURT OF APPEALS OF IOWA
No. 15-0527 Filed May 11, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
LIONEL CLARK, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,
Judge.
The defendant appeals his conviction and sentence for introduction of
contraband (a controlled substance) into a jail. AFFIRMED.
Karl G. Knudson, Decorah, for appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
BLANE, Senior Judge.
Lionel Clark appeals his conviction for introduction of contraband (a
controlled substance) into a jail.1 Clark maintains he received ineffective
assistance from trial counsel because trial counsel failed to object to a mid-trial
amendment to the charge as to the code section. He also maintains the
sentence he received is cruel and unusual, in violation of his constitutional rights.
I. Background Facts and Proceedings.
On July 15, 2014, Clark was charged by trial information with introducing
contraband (controlled substance) into a detention facility, in violation of Iowa
Code section 719.7(3)(a) (2013). The matter proceeded to jury trial on February
10–12, 2015. Immediately prior to the commencement of trial, upon the
prosecution’s motion, the charge was amended to instead allege a violation of
Iowa Code section 719.8, entitled “Furnishing a controlled substance or
intoxicating beverage to inmates at a detention facility.”
At trial, it was established, both through the officers’ and Clark’s testimony,
that Clark was stopped by officers who observed him staggering in the street
sometime after 11:30 p.m. on July 4, 2014. Clark had been drinking before he
was stopped. He voluntarily submitted to a preliminary breath test, and the result
showed his blood alcohol content was .164. The officers handcuffed Clark,
placed him in a squad car, and told him they were “going to take [him] in for the
night for public intox[ication].” At trial, Clark admitted he had marijuana on him
when he was stopped and handcuffed by the officers, but he testified that the 1 Clark was also charged and convicted of possession of marijuana (second offense) and public intoxication (second offense), but he does not appeal these convictions. 3
officers had confiscated it from him before placing him in the squad car. He
testified that he responded to the officers’ questions about having any illegal
materials on him with a negative because they had already confiscated the
marijuana from him at that time. The officers testified they did not find marijuana
on Clark before placing him in the squad car and stated that he had denied
having any illegal items on him when asked.
Once they reached the police station, Clark was placed in a jail cell and
searched more completely. Officer Mast testified that the cell Clark was
searched in had been checked for contraband when Mast’s shift started, and it
was completely empty. He further testified that no one else had been placed in
the cell before Clark. According to the officer, when they were conducting the
more complete search of Clark—removing his shoes, socks, etc.—he noticed a
small plastic bag on the ground near Clark’s feet. The contents of the bag were
later tested and confirmed to be .5 grams of marijuana.
After the defense rested, the parties and the court spoke about jury
instructions on the record, outside the presence of the jury. The court indicated
there had been an off-the-record discussion about whether “this should be
charged under [Iowa Code sections] 719.8 or 719.7.”2 After some discussion
about changes to the statute as well as recent case law, the court announced,
“Well, because 719.7 is now so clear that it does apply to county jails as well as
facilities under the supervision of the Department of Corrections, I’m going to
recast this so that it would fit under 719.7, recast this marshalling instruction so
2 The record reflects that the State had not moved to amend the charge at this time. 4
that it would.” During the discussions on the record, defense counsel argued for
application of Iowa Code section 719.7, and the State acquiesced that the jury
could be instructed under either section 719.7 or 719.8. The corresponding jury
instruction given to the jury stated:
The State must prove all of the following elements of Introducing a Controlled Substance Into a Jail:
1. On or about the 5th day of July, 2014, the defendant knowingly introduced marijuana into the Black Hawk County Jail. 2. Marijuana is a controlled substance.
If the State has proved both of these elements, the defendant is guilty of Introducing a Controlled Substance Into a Jail. If the State has failed to prove any one of the elements, the defendant is not guilty.
The jury found Clark guilty of each of the charged offenses. He was
sentenced to a term of incarceration not to exceed five years for introducing a
controlled substance into a jail, and one year each for public intoxication, second
offense, and possession of a controlled substance (marijuana), second offense.
The sentences were ordered to run concurrently.
Clark appeals.
II. Standard of Review.
We may decide ineffective-assistance-of-counsel claims on direct appeal if
we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.
This is our standard because such claims have their basis in the Sixth
Amendment to the United States Constitution. State v. Clay, 824 N.W.2d 488,
494 (Iowa 2012). 5
Clark maintains his sentence is cruel and unusual in violation of the Eighth
Amendment of the United States Constitution and article 1, section 17 of the
Iowa Constitution. We review constitutional claims de novo. State v. Oliver, 812
N.W.2d 636, 639 (Iowa 2012).
III. Discussion.
A. Ineffective Assistance.
To prevail on a claim of ineffective assistance of counsel, Clark must
prove by a preponderance of the evidence (1) counsel failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To establish prejudice, Clark
must show there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. See State v.
McCoy, 692 N.W.2d 6, 25 (Iowa 2005). An attorney’s improvident trial strategy,
miscalculated tactics, or mistakes in judgment do not necessarily amount to
ineffective assistance of counsel. State v. Ondayog, 722 N.W.2d 778, 786 (Iowa
2006). Furthermore, because tactical decisions by counsel must be judged
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IN THE COURT OF APPEALS OF IOWA
No. 15-0527 Filed May 11, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
LIONEL CLARK, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,
Judge.
The defendant appeals his conviction and sentence for introduction of
contraband (a controlled substance) into a jail. AFFIRMED.
Karl G. Knudson, Decorah, for appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
BLANE, Senior Judge.
Lionel Clark appeals his conviction for introduction of contraband (a
controlled substance) into a jail.1 Clark maintains he received ineffective
assistance from trial counsel because trial counsel failed to object to a mid-trial
amendment to the charge as to the code section. He also maintains the
sentence he received is cruel and unusual, in violation of his constitutional rights.
I. Background Facts and Proceedings.
On July 15, 2014, Clark was charged by trial information with introducing
contraband (controlled substance) into a detention facility, in violation of Iowa
Code section 719.7(3)(a) (2013). The matter proceeded to jury trial on February
10–12, 2015. Immediately prior to the commencement of trial, upon the
prosecution’s motion, the charge was amended to instead allege a violation of
Iowa Code section 719.8, entitled “Furnishing a controlled substance or
intoxicating beverage to inmates at a detention facility.”
At trial, it was established, both through the officers’ and Clark’s testimony,
that Clark was stopped by officers who observed him staggering in the street
sometime after 11:30 p.m. on July 4, 2014. Clark had been drinking before he
was stopped. He voluntarily submitted to a preliminary breath test, and the result
showed his blood alcohol content was .164. The officers handcuffed Clark,
placed him in a squad car, and told him they were “going to take [him] in for the
night for public intox[ication].” At trial, Clark admitted he had marijuana on him
when he was stopped and handcuffed by the officers, but he testified that the 1 Clark was also charged and convicted of possession of marijuana (second offense) and public intoxication (second offense), but he does not appeal these convictions. 3
officers had confiscated it from him before placing him in the squad car. He
testified that he responded to the officers’ questions about having any illegal
materials on him with a negative because they had already confiscated the
marijuana from him at that time. The officers testified they did not find marijuana
on Clark before placing him in the squad car and stated that he had denied
having any illegal items on him when asked.
Once they reached the police station, Clark was placed in a jail cell and
searched more completely. Officer Mast testified that the cell Clark was
searched in had been checked for contraband when Mast’s shift started, and it
was completely empty. He further testified that no one else had been placed in
the cell before Clark. According to the officer, when they were conducting the
more complete search of Clark—removing his shoes, socks, etc.—he noticed a
small plastic bag on the ground near Clark’s feet. The contents of the bag were
later tested and confirmed to be .5 grams of marijuana.
After the defense rested, the parties and the court spoke about jury
instructions on the record, outside the presence of the jury. The court indicated
there had been an off-the-record discussion about whether “this should be
charged under [Iowa Code sections] 719.8 or 719.7.”2 After some discussion
about changes to the statute as well as recent case law, the court announced,
“Well, because 719.7 is now so clear that it does apply to county jails as well as
facilities under the supervision of the Department of Corrections, I’m going to
recast this so that it would fit under 719.7, recast this marshalling instruction so
2 The record reflects that the State had not moved to amend the charge at this time. 4
that it would.” During the discussions on the record, defense counsel argued for
application of Iowa Code section 719.7, and the State acquiesced that the jury
could be instructed under either section 719.7 or 719.8. The corresponding jury
instruction given to the jury stated:
The State must prove all of the following elements of Introducing a Controlled Substance Into a Jail:
1. On or about the 5th day of July, 2014, the defendant knowingly introduced marijuana into the Black Hawk County Jail. 2. Marijuana is a controlled substance.
If the State has proved both of these elements, the defendant is guilty of Introducing a Controlled Substance Into a Jail. If the State has failed to prove any one of the elements, the defendant is not guilty.
The jury found Clark guilty of each of the charged offenses. He was
sentenced to a term of incarceration not to exceed five years for introducing a
controlled substance into a jail, and one year each for public intoxication, second
offense, and possession of a controlled substance (marijuana), second offense.
The sentences were ordered to run concurrently.
Clark appeals.
II. Standard of Review.
We may decide ineffective-assistance-of-counsel claims on direct appeal if
we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.
This is our standard because such claims have their basis in the Sixth
Amendment to the United States Constitution. State v. Clay, 824 N.W.2d 488,
494 (Iowa 2012). 5
Clark maintains his sentence is cruel and unusual in violation of the Eighth
Amendment of the United States Constitution and article 1, section 17 of the
Iowa Constitution. We review constitutional claims de novo. State v. Oliver, 812
N.W.2d 636, 639 (Iowa 2012).
III. Discussion.
A. Ineffective Assistance.
To prevail on a claim of ineffective assistance of counsel, Clark must
prove by a preponderance of the evidence (1) counsel failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To establish prejudice, Clark
must show there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. See State v.
McCoy, 692 N.W.2d 6, 25 (Iowa 2005). An attorney’s improvident trial strategy,
miscalculated tactics, or mistakes in judgment do not necessarily amount to
ineffective assistance of counsel. State v. Ondayog, 722 N.W.2d 778, 786 (Iowa
2006). Furthermore, because tactical decisions by counsel must be judged
within the context of the totality of the circumstances on a case-by-case basis, it
is often necessary to preserve such allegations for postconviction proceedings so
that the record can be more fully developed. Id.; see also Iowa Code § 814.7(3)
(“If an ineffective assistance of counsel claim is raised on direct appeal from the
criminal proceedings, the court may decide the record is adequate to decide the
claim or may choose to preserve the claim for [postconviction proceedings].”). 6
Clark’s claim fails if either element is lacking. See Everett v. State, 789 N.W.2d
151, 159 (Iowa 2010).
On appeal, Clark makes two claims of ineffective assistance. He argues
that trial counsel was ineffective both for failing to object to the charge being
amended from section 719.8 to section 719.7 after both sides rested3 and failing
to move for a motion of judgment of acquittal4 as to the charge under section
719.8. To establish he suffered prejudice from either of trial counsel’s alleged
errors, Clark must establish that he would have been acquitted under section
719.8.
Iowa Code section 719.8 provides, in pertinent part, “A person not
authorized by law . . . who introduces a controlled substance or intoxicating
beverage into the premises of a [detention facility], commits a class ‘D’ felony.”
Clark makes several specific arguments regarding why he could not be convicted
under section 719.8, and we respond to each in turn.
3 We note Clark also claims trial counsel was ineffective for allowing Clark’s due process rights to be violated with the late change of the charge. Clark maintains the late change prevented him from receiving “adequate notice.” Although the procedure was atypical and imprudent, it did not affect Clark’s receipt of notice. Clark was charged by trial information with a violation of section 719.7 in July 2015. That is the charge he intended to defend against the entire time leading up to trial and the charge the jury was ultimately instructed on. Because Clark has not identified any way in which the amendment of the code section affected either the defense he presented or would have presented, he has not established that he was prejudiced by the late change. 4 Although appellate counsel refers to the defendant’s motion as one for directed verdict, it appears trial counsel correctly made a motion for judgment of acquittal. For purposes of the appeal, we treat appellate counsel’s claim regarding a motion for a directed verdict as a claim regarding a motion for judgment of acquittal. See State v. Adney, 639 N.W.2d 246, 249 n.2 (Iowa Ct. App. 2001); see also State v. Deets, 195 N.W.2d 118, 123 (Iowa 1972) (holding that grant of motion for directed verdict is tantamount to a judgment of acquittal in a criminal action) overruled on other grounds by State v. Walker, 574 N.W.2d 280, 283 (Iowa 1998). 7
First, Clark argues a county jail is not a “detention facility.” However, our
caselaw has established otherwise. See State v. Mitchell, 650 N.W.2d 619, 620
(Iowa 2002); see also State v. Iowa Dist. Ct., 464 N.W.2d 233, 235 (Iowa 1990)
(interpreting section 719.8 and holding that the phrase “detention facility”
includes county jails). Next, Clark maintains we must read the language of
section 719.8 to find that the use of “premises,” which is an undefined word in the
statute, is “intended to be a reference to the part of the jail housing the general
inmate population.” Although we are not convinced the legislature intended a
definition of premises other than the generally accepted one,5 we do not believe
that even Clark’s proffered definition would require a finding that Clark did not
violate the statute. Clark was in a secure area of the building and, more
specifically, placed in a cell for the search to be conducted. Although there were
no other inmates there at the time the search was conducted, it is clearly a place
inmates are meant to be kept.
Next, Clark maintains that section 719.8 should be interpreted as a
specific-intent crime. In the alternative, he maintains that even if it is a general-
intent crime, there is still not sufficient evidence to support a finding he intended
to bring the marijuana onto the premises. In State v. Canas, 597 N.W.2d 488,
495 (Iowa 1999),6 our supreme court was specifically asked to determine
whether section 719.8 is a general or specific intent crime. The court held:
A review of the statutory language reveals that the offense criminalizing the introduction of controlled substances into a
5 “Premises” are defined as: “A house or building, along with its grounds.” Premises, Black’s Law Dictionary (10th ed. 2014). 6 Abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). 8
detention facility does not require an intent to do any further act or achieve some additional consequence other than the prohibited conduct of introducing a controlled substance into a detention facility. It is a general intent crime . . . .
Canas, 597 N.W.2d at 495–96. Although the section has been amended slightly
since the court considered it, we are not persuaded that the changes have
affected the requisite intent. Finally, substantial evidence supports a finding that
Clark had the general intent to introduce marijuana, a controlled substance, into
the premises of the jail.
In Canas, the defendant claimed his trial counsel should have argued the
defendant’s submission to police authority while he had drugs on his person was
not sufficient to show he had the intent to voluntarily introduce drugs into the jail.
Id. at 495. The court was unpersuaded by the defendant’s argument, stating,
“[T]he defendant in the case at bar had the option of disclosing the presence of
drugs concealed on his person before he entered the jail and became guilty of
the additional offense of introducing controlled substances into a detention
facility.” Id. at 496. Clark also argues that by doing so he would have
incriminated himself for a different crime, but “[t]he criminal process includes
many situations which require a defendant to make difficult judgments regarding
which course to follow.” Id. Clark further maintains Canas is not applicable
because he did not know he was under arrest when he was taken to the jail.
Clark’s testimony at trial belies this assertion. He testified that as he was being
handcuffed and placed in the squad car, the officers told him they were “going to
take [him] in for the night for public intox[ication].” Additionally, although Clark
testified that the officers removed the marijuana from him before placing him in 9
the squad car, the jury clearly found the officers’ testimony more credible than
Clark’s. Clark knew he had a controlled substance on his person, knew he was
being taken to jail, and failed to disclose his possession of the controlled
substance when asked; nothing more is required to violate section 719.8. See id.
at 495–96.
Because each of his arguments regarding section 719.8 fails, Clark cannot
establish that he was prejudiced by trial counsel’s alleged errors.
B. Cruel and Unusual Punishment.
Clark maintains the five-year sentence he received for violating section
719.7 is cruel and unusual, in violation of the Eighth Amendment of the United
States Constitution and article 1, section 17 of the Iowa Constitution. Clark urges
us to adopt our own framework when reviewing his claim. Because it is generally
the role of our supreme court to decide if precedent should be abandoned, we
decline Clark’s entreaty and apply the framework as our supreme court has
before. See State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014) (“Generally it
is the role of the supreme court to decide if case precedent should no longer be
followed.”).
Two types of challenges to a sentence for a term of years have been
recognized. A defendant may make a categorical challenge to the sentence,
contending “a particular sentencing practice violated the Eighth Amendment.”
State v. Oliver, 812 N.W.2d 636, 640 (Iowa 2012). A defendant may also make a
“gross proportionality challenge to [the] particular defendant’s sentence.” Id.
Clark makes a gross proportionality challenge to his particular sentence. 10
The Iowa Supreme Court set forth the framework for this challenge in
State v. Oliver:
The first step in this analysis, sometimes referred to as the threshold test, requires a reviewing court to determine whether a defendant’s sentence leads to an inference of gross disproportionality. This preliminary test involves a balancing of the gravity of the crime against the severity of the sentence. If, and only if, the threshold test is satisfied, a court then proceeds to steps two and three of the analysis. These steps require the court to engage in an intrajurisdictional analysis comparing the challenged sentence to sentences for other crimes within the jurisdiction. Next, the court engages in an interjurisdictional analysis, comparing sentences in other jurisdictions for the same or similar crimes.
812 N.W.2d at 647 (citation omitted). While the framework for analyzing a gross
proportionality challenge to an individual sentence is the same under the federal
and state constitutions, the Iowa Supreme Court has instructed “that review of
criminal sentences for gross disproportionality under the Iowa Constitution should
not be a ‘toothless’ review.” Id. This means we apply “a more stringent review
than would be available under the Federal Constitution.” Id. at 650.
We first decide whether Clark’s sentence leads to an inference of gross
disproportionality. In making this determination, we consider several general
principles. First, “we owe substantial deference to the penalties the legislature
has established for various crimes.” Id. “Criminal punishment can have different
goals, and choosing among them is within a legislature’s discretion.” Graham v.
Florida, 560 U.S. 48, 71 (2010). Second, “it is rare that a sentence will be so
grossly disproportionate to the crime as to satisfy the threshold inquiry and
warrant further review.” Oliver, 812 N.W.2d at 650. Third, “a recidivist offender
is more culpable and thus more deserving of a longer sentence than a first-time 11
offender.” Id. And finally, the unique circumstances of a defendant can
“converge to generate a high risk of potential gross disproportionality.” Id. at 651.
Here, Clark was convicted of a class “D” felony. Although he received the
maximum sentence for that particular crime, the district court also ran his other
sentences concurrently. See Iowa Code § 902.9(1)(e). Additionally, Clark is a
recidivist, and he could have been charged as a habitual offender, in which case
he could have received a fifteen-year sentence for the same conviction. See
Iowa Code § 902.9(1)(c). Much of Clark’s argument regarding the
disproportionality of the sentence involves his claim that a small amount of
marijuana on his person should not be treated the same as if he brought a
weapon into the premises. It is not. Bringing a “dangerous weapon, offensive
weapon, pneumatic gun, stun gun, firearm ammunition, knife of any length” is a
violation of 719.7(4)(a) and is a class “C” felony, which carries a punishment of
“no more than ten years.” Iowa Code § 902.9(1)(d). Additionally, Clark
maintains the punishment is disproportional because he did not voluntarily bring
the contraband onto the premises. For all of the reasons explained in the first
section, this argument also fails.
Here, giving deference to the sentence established by the legislature and
having considered each of Clark’s arguments, we are not persuaded that Clark’s
sentence gives rise to an inference of gross disproportionality. Thus, we need
not proceed to steps two and three of the analysis. See Oliver, 812 N.W.2d at
653. 12
IV. Conclusion.
Because Clark cannot establish he was prejudiced by trial counsel’s
alleged errors, his claims for ineffective assistance fail. Additionally, because his
five-year sentence does not meet the threshold test of leading to an inference of
gross disproportionality, his claim that the sentence is cruel and unusual fails.
We affirm.
AFFIRMED.