IN THE COURT OF APPEALS OF IOWA
No. 14-1564 Filed September 10, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
VALERIE ANN GIDDINGS, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling
(plea) and John D. Telleen (sentence), Judges.
Defendant appeals from the judgment and sentence imposed following her
guilty plea to operating while intoxicated, third offense. AFFIRMED.
Lauren M. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, Michael J. Walton, County Attorney and Dion Trowers and Melisa
Zaehringer, Assistant County Attorneys, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
MCDONALD, J.
Valerie Giddings appeals from the judgment and sentence imposed
following her guilty plea to operating while intoxicated, (“OWI”) third offense, in
violation of Iowa Code section 321J.2(1) and .2(2)(c) (2013). She contends the
district court considered an improper factor in imposing sentence. She also
contends her attorney rendered constitutionally-ineffective assistance in several
respects.
I.
Giddings was driving her car and started turning through an intersection
when a motorcycle approached at what one witness described as “a ridiculously
high rate of speed.” The motorcycle struck Giddings’s car on the driver’s side,
catapulting the cyclist and the motorcycle over Giddings’s car and spinning her
car about ninety degrees. The motorcyclist died at the scene. When police
arrived at the scene, Giddings and her passenger stated the passenger had been
driving the vehicle. Giddings ultimately admitted she was the driver.
Giddings was taken to the hospital for treatment. An officer questioned
Giddings at the hospital while she was receiving treatment in the emergency
room. Giddings denied drinking, but she admitted to taking two of her mother’s
Xanax tablets earlier in the evening. She also admitted to smoking marijuana
two days before. Based on these statements, after giving Giddings the implied
consent advisory, the officer obtained a urine sample. The officer also asked the
hospital staff to preserve any blood drawn. The urine tested positive for
marijuana, alprazolam (Xanax), amphetamines, and hydrocodone (an opiate). 3
The State charged Giddings with OWI, third offense, in violation of Iowa
Code section 321J.2(2)(c), and driving while barred, as a habitual offender, in
violation of sections 321.555(1) and .561. Following negotiations, Giddings
pleaded guilty to the OWI charge. The driving-while-barred charge was
dismissed at sentencing. The plea agreement provided the State would
recommend five years’ incarceration, a fine of $3125 plus costs and surcharge,
and suspension of Giddings’s driver’s license for six years.
At sentencing the court stated:
I note from reviewing your pre-sentence investigation report just the prior criminal history, simply looking at the matters for which, of course as I do, for which you pled guilty or were found guilty. I mean it’s replete with crimes. Not only do we have two prior OWI’s but we have disorderly conduct, assault causing bodily injury, assault on police officers, disorderly conduct by fighting or violent behavior, some controlled substances offenses such as marijuana. Many of those while you were certainly old enough to know better and now we are here today on this matter. There was a death involved in this accident. I accept your statements here today that you accept responsibility and apologize for your behavior but in any event I’ve determined under your case that incarceration is appropriate and for those reasons I just stated I think the sentence would involve—serve the interest of deterrence both general and specific as well.
The court imposed a prison sentence not to exceed five years, ordered Giddings
to pay a fine of $3125 plus costs including attorney fees and surcharges, and
ordered the department of transportation to suspend her driving privileges for six
years. Giddings timely filed this appeal.
II.
Giddings contends the district court considered an improper factor in
imposing sentence; specifically, the fact a death occurred in the accident, even 4
though she was not charged with vehicular homicide and the OWI offense
appears not to be a cause of the death. Generally, we review a district court’s
sentencing decision for an abuse of discretion or for a defect in sentencing
procedure. See State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). A claim
that a court impermissibly considered uncharged and unproven crimes implicates
a defect in sentencing procedure rather than a court’s exercise of discretion.
State v. Mateer, 383 N.W.2d 533, 537 (Iowa 1986). The district court may not
consider unproven or unprosecuted offenses when sentencing a defendant
unless (1) the facts before the court demonstrate the defendant committed the
offense or (2) the defendant admits committing the offense. See Gonzalez, 582
N.W.2d at 516. Where improper factors are considered, a sentence must be
vacated and the case remanded for resentencing. See State v. Sinclair, 582
N.W.2d 762, 765 (Iowa 1982). A sentence “is cloaked with a strong presumption
in its favor, and will only be overturned for an abuse of discretion or the
consideration of inappropriate matters.” State v. Washington, 832 N.W.2d 650,
660 (Iowa 2013). “To overcome the presumption, [courts] have required an
affirmative showing the sentencing court relied on improper evidence.” Id.
We conclude the district court did not rely on inappropriate factors in
imposing sentence. In a materially similar case, the defendant pleaded guilty to
reckless driving. See State v. Wilson, No. 99-886, 2000 WL 70292, at *2 (Iowa
Ct. App. May 31, 2000). The sentencing court noted during the sentencing
hearing that a passenger had died during the accident giving rise to the charge
even though the defendant had not been charged with vehicular homicide. See 5
id. at *2. This court rejected the argument the sentencing court had considered
an improper factor by merely noting the death. See id. Instead, the death was
an attendant circumstance. See id. We noted the sentencing court focused on
other elements at sentencing, e.g., the defendant’s recklessness, the deterrent
effect of a prison term, and the defendant’s criminal history. See id. Similarly, in
this case, the sentencing court focused on the defendant’s significant criminal
history and the deterrent effect—both general and specific—of incarceration.
While the district court noted the death of the motorcyclist, it does not appear the
district court relied on that fact as a reason for imposition of the sentence. Nor is
there any indication the district court concluded that Giddings was at fault for or
caused the death. As in Wilson, we conclude Giddings has not overcome the
presumption in favor of the sentence by affirmatively demonstrating the court
relied on improper evidence. See also Washington, 832 N.W.2d at 660; State v.
Formaro,
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IN THE COURT OF APPEALS OF IOWA
No. 14-1564 Filed September 10, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
VALERIE ANN GIDDINGS, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling
(plea) and John D. Telleen (sentence), Judges.
Defendant appeals from the judgment and sentence imposed following her
guilty plea to operating while intoxicated, third offense. AFFIRMED.
Lauren M. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, Michael J. Walton, County Attorney and Dion Trowers and Melisa
Zaehringer, Assistant County Attorneys, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
MCDONALD, J.
Valerie Giddings appeals from the judgment and sentence imposed
following her guilty plea to operating while intoxicated, (“OWI”) third offense, in
violation of Iowa Code section 321J.2(1) and .2(2)(c) (2013). She contends the
district court considered an improper factor in imposing sentence. She also
contends her attorney rendered constitutionally-ineffective assistance in several
respects.
I.
Giddings was driving her car and started turning through an intersection
when a motorcycle approached at what one witness described as “a ridiculously
high rate of speed.” The motorcycle struck Giddings’s car on the driver’s side,
catapulting the cyclist and the motorcycle over Giddings’s car and spinning her
car about ninety degrees. The motorcyclist died at the scene. When police
arrived at the scene, Giddings and her passenger stated the passenger had been
driving the vehicle. Giddings ultimately admitted she was the driver.
Giddings was taken to the hospital for treatment. An officer questioned
Giddings at the hospital while she was receiving treatment in the emergency
room. Giddings denied drinking, but she admitted to taking two of her mother’s
Xanax tablets earlier in the evening. She also admitted to smoking marijuana
two days before. Based on these statements, after giving Giddings the implied
consent advisory, the officer obtained a urine sample. The officer also asked the
hospital staff to preserve any blood drawn. The urine tested positive for
marijuana, alprazolam (Xanax), amphetamines, and hydrocodone (an opiate). 3
The State charged Giddings with OWI, third offense, in violation of Iowa
Code section 321J.2(2)(c), and driving while barred, as a habitual offender, in
violation of sections 321.555(1) and .561. Following negotiations, Giddings
pleaded guilty to the OWI charge. The driving-while-barred charge was
dismissed at sentencing. The plea agreement provided the State would
recommend five years’ incarceration, a fine of $3125 plus costs and surcharge,
and suspension of Giddings’s driver’s license for six years.
At sentencing the court stated:
I note from reviewing your pre-sentence investigation report just the prior criminal history, simply looking at the matters for which, of course as I do, for which you pled guilty or were found guilty. I mean it’s replete with crimes. Not only do we have two prior OWI’s but we have disorderly conduct, assault causing bodily injury, assault on police officers, disorderly conduct by fighting or violent behavior, some controlled substances offenses such as marijuana. Many of those while you were certainly old enough to know better and now we are here today on this matter. There was a death involved in this accident. I accept your statements here today that you accept responsibility and apologize for your behavior but in any event I’ve determined under your case that incarceration is appropriate and for those reasons I just stated I think the sentence would involve—serve the interest of deterrence both general and specific as well.
The court imposed a prison sentence not to exceed five years, ordered Giddings
to pay a fine of $3125 plus costs including attorney fees and surcharges, and
ordered the department of transportation to suspend her driving privileges for six
years. Giddings timely filed this appeal.
II.
Giddings contends the district court considered an improper factor in
imposing sentence; specifically, the fact a death occurred in the accident, even 4
though she was not charged with vehicular homicide and the OWI offense
appears not to be a cause of the death. Generally, we review a district court’s
sentencing decision for an abuse of discretion or for a defect in sentencing
procedure. See State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). A claim
that a court impermissibly considered uncharged and unproven crimes implicates
a defect in sentencing procedure rather than a court’s exercise of discretion.
State v. Mateer, 383 N.W.2d 533, 537 (Iowa 1986). The district court may not
consider unproven or unprosecuted offenses when sentencing a defendant
unless (1) the facts before the court demonstrate the defendant committed the
offense or (2) the defendant admits committing the offense. See Gonzalez, 582
N.W.2d at 516. Where improper factors are considered, a sentence must be
vacated and the case remanded for resentencing. See State v. Sinclair, 582
N.W.2d 762, 765 (Iowa 1982). A sentence “is cloaked with a strong presumption
in its favor, and will only be overturned for an abuse of discretion or the
consideration of inappropriate matters.” State v. Washington, 832 N.W.2d 650,
660 (Iowa 2013). “To overcome the presumption, [courts] have required an
affirmative showing the sentencing court relied on improper evidence.” Id.
We conclude the district court did not rely on inappropriate factors in
imposing sentence. In a materially similar case, the defendant pleaded guilty to
reckless driving. See State v. Wilson, No. 99-886, 2000 WL 70292, at *2 (Iowa
Ct. App. May 31, 2000). The sentencing court noted during the sentencing
hearing that a passenger had died during the accident giving rise to the charge
even though the defendant had not been charged with vehicular homicide. See 5
id. at *2. This court rejected the argument the sentencing court had considered
an improper factor by merely noting the death. See id. Instead, the death was
an attendant circumstance. See id. We noted the sentencing court focused on
other elements at sentencing, e.g., the defendant’s recklessness, the deterrent
effect of a prison term, and the defendant’s criminal history. See id. Similarly, in
this case, the sentencing court focused on the defendant’s significant criminal
history and the deterrent effect—both general and specific—of incarceration.
While the district court noted the death of the motorcyclist, it does not appear the
district court relied on that fact as a reason for imposition of the sentence. Nor is
there any indication the district court concluded that Giddings was at fault for or
caused the death. As in Wilson, we conclude Giddings has not overcome the
presumption in favor of the sentence by affirmatively demonstrating the court
relied on improper evidence. See also Washington, 832 N.W.2d at 660; State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002) (stating court may look to attending
circumstances); State v. Sailer, 587 N.W.2d 756, 763-64 (Iowa 1998) (affirming
sentence where the defendant did not establish “any reliance on improper factors
which would overcome the presumption that the district court properly exercised
its discretion”); State v. Dains, No. 00-0620, 2001 WL 1451125, at *2 (Iowa Ct.
App. Nov. 16, 2001) (noting “in determining an appropriate sentence a court may
look to the facts and circumstances surrounding the crime”).
III.
Giddings also asserts her counsel provided inadequate representation in
two respects: first, by failing to file a motion to suppress the sample obtained 6
without probable cause and inculpatory statements obtained without Miranda
warnings; second, by advising her to plead guilty. She also hints that her
statements made at the hospital were involuntary. Constitutional challenges to
an attorney’s performance are reviewed de novo. State v. Ambrose, 861 N.W.2d
550, 555 (Iowa 2015). In an ineffective-assistance claim arising out of a guilty
plea, the defendant must prove that had counsel not breached an essential duty,
the defendant would have declined to plead guilty and insisted on going to trial.
See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).
The entry of a guilty plea and its acceptance is a final adjudication of a
defendant’s guilt. See State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000). By
pleading guilty, a defendant waives any constitutional challenge that would
undermine the conviction, with certain exceptions, one of which is a claim
counsel’s ineffective assistance calls into question the voluntariness of the plea.
See id. While a guilty plea waives all defenses and objections not intrinsic to a
plea, our supreme court has permitted a defendant to “challenge the validity of
[the] guilty plea by proving the advice he received from counsel in connection
with the plea was not within the range of competence demanded of attorneys in
criminal cases.” See State v. Carroll, 767 N.W.2d 638, 642 (Iowa 2009).
Filing a claim for ineffective assistance of counsel on direct appeal is
unnecessary to protect the defendant’s right to seek relief. See Iowa Code
§ 814.7 (“The claim need not be raised on direct appeal from the criminal
proceedings in order to preserve the claim for postconviction relief purposes.”).
A party “may, but is not required to, raise an ineffective assistance claim on direct 7
appeal . . . if the party has reasonable grounds to believe that the record is
adequate to address the claim on direct appeal.” Id. § 814.7(2). However,
“[p]resenting an underdeveloped claim on direct appeal not only wastes the
party’s resources and judicial resources, it poses a litigation risk to the defendant,
who may receive an adverse judgment on a potentially meritorious claim due to
the presentation of a claim on an underdeveloped record.” See State v. Eaton,
No. 14-0789, 2014 WL 7367008, at *1 n.1 (Iowa Ct. App. Dec. 24, 2014). We
conclude, as Giddings suggests, the record here is inadequate for us to address
Giddings’s challenges to her attorney’s performance. We preserve her
ineffective-assistance claims for possible postconviction-relief proceedings.
IV.
For the foregoing reasons, we affirm the sentence imposed and preserve
Giddings’s ineffective-assistance claims for possible postconviction-relief
proceedings.
AFFIRMED.