                       IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1203
                               Filed June 11, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PABLO ELIAS-LOPEZ,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Jeffrey A.

Neary, Judge.



       Pablo Elias-Lopez appeals from his conviction and sentence for

possession of marijuana with intent to distribute. AFFIRMED.



       Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Patrick Jennings, County Attorney, and Amy Klocke, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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VOGEL, P.J.

       Pablo Elias-Lopez appeals from his conviction and sentence for

possession of marijuana with intent to distribute. He asserts the district court

erred in denying his motion to exclude a State’s witness added five days before

trial, which he frames as an ineffective-assistance-of-counsel claim. He further

argues the district court abused its discretion in imposing an unreasonable

sentence. Because we conclude Elias-Lopez failed to establish prejudice with

regard to his ineffective-assistance claim, and the court did not abuse its

discretion with respect to its sentencing decision, we affirm.

       Elias-Lopez was arrested on November 21, 2012, following a vehicle

search that uncovered 222.9 grams of marijuana. He was charged on November

28, 2012, with possession with intent to deliver a controlled substance as a

habitual offender, within 1000 feet of a park, in violation of Iowa Code sections

124.401(1)(d), 124.411, and 124.401(A) (2011), and failure to affix a tax stamp,

in violation of Iowa Code sections 453B.12 and 902.8. A final pretrial conference

was held on April 11, 2013, four days prior to trial, in which Elias-Lopez moved to

exclude the State’s confidential informant from testifying because the State had

not previously served notice or listed the confidential informant in the minutes of

testimony.1 The court denied the motion. Elias-Lopez deposed the informant on

the morning of April 16, the date trial was scheduled to begin.

       Elias-Lopez pled guilty on April 16, 2013, to possession with intent to

deliver as a habitual offender. Shortly thereafter, Elias-Lopez filed a motion in

1
 The State’s intention to call this witness resulted from the district court’s prior ruling,
excluding as hearsay a law enforcement officer’s statement as to what he had been told
by this witness.
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arrest of judgment, contesting the plea as not knowing, voluntary, and intelligent.

A hearing was held on July 17, in which Elias-Lopez withdrew his motion, and a

sentencing hearing then proceeded. The district court sentenced Elias-Lopez to

a term of incarceration not to exceed fifteen years. Elias-Lopez appeals.

       We review ineffective-assistance-of-counsel claims de novo.          State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).             To succeed on this claim, the

defendant must establish trial counsel breached an essential duty and he was

then prejudiced by counsel’s failure. Id. We review sentencing decisions for an

abuse of discretion. State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

       Elias-Lopez first claims the district court erred in denying his motion to

exclude the confidential informant as a witness, and trial counsel was ineffective

for failing to condition his guilty plea on the preservation of error with respect to

this issue.   However, counsel was able to depose the confidential informant

before the commencement of trial. Given this fact, as well as the lack of an

assertion the outcome of the proceeding would have been different but for

counsel’s failure, Elias-Lopez has failed to set forth an argument on which we

could make a finding of prejudice. See Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001) (holding when the defendant’s claim lacks prejudice, we may

dispose of the claim on that ground alone).         Moreover, our rules of criminal

procedure do not allow a defendant to enter a conditional plea of guilty. See

Iowa R. Crim. P. 2.8(2)(a). Therefore, counsel did not breach an essential duty

by not conditioning Elias-Lopez’s guilty plea on a preservation of error issue, and

Elias-Lopez’s ineffective-assistance claim fails.
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       Elias-Lopez next asserts the district court abused its discretion in ordering

a term of incarceration as opposed to probation, for which Elias-Lopez argued at

sentencing. He claims the court gave undue weight to his criminal history, rather

than considering all the pertinent factors set forth in Iowa Code section 901.5.

       During the sentencing hearing, the court set forth the following reasoning

for imposing its sentence:

                I realize what you say, [defense counsel], is something that
       I’ve noticed and experienced as well as with relationships of young
       men between 18 and 25. The hard part about this case is that the
       criminal history is so significant, and I can’t ignore that because I
       have no way of telling whether Mr. Lopez has what it takes to be
       successful this time on probation.          I’m going to follow the
       recommendation of the presentence report. I realize you have a
       serious usage addiction problem and it somehow, sometime has to
       get under control, and it’s—I don’t like sending someone to prison,
       especially someone as young as you. But unfortunately your
       criminal history and the recommendations and the—my belief is
       you won’t be successful on probation.
                ....
                The court has considered all of the sentencing options in this
       case and believes that the sentence it’s going to impose is going to
       provide the maximum opportunity for the rehabilitation of Mr. Lopez.
       It will protect the community from further offenses by Mr. Lopez and
       others who might be inclined to commit similar offenses. I’ve
       considered the presentence report to the extent of the parties’
       agreement. I have considered the defendant’s comments and
       comments of counsel today. And if things were different, if we
       didn’t have such an extensive criminal history, I would clearly
       consider other options. And if I had another good option that I
       thought would work, I would clearly consider it. I do believe you’ve
       reached a point in your life, and I don’t know when that is, it’s
       different with everyone that life changes, your perspective changes
       on things and hopefully you’ve reached that point but if not, you will
       by the time you get released this point in time. But, nevertheless,
       because the defendant has pled guilty and admitted he’s a habitual
       offender, the period of incarceration from five years from the
       original sentence under Count I is now enhanced to a period of
       incarceration not to exceed . . . 15 years . . . . So no fine or
       surcharge is imposed, but the period of incarceration is imposed. It
       is not suspended.
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The court clearly explained its reasoning in declining to suspend the term of

incarceration, and it did not give undue weight to Elias-Lopez’s criminal history.

Rather, it considered the appropriate factors under Iowa Code section 901.5.

See generally State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006).

Consequently, we find no abuse of discretion in this decision.

      Having considered Elias-Lopez’s arguments, we affirm both his conviction

and sentence.

      AFFIRMED.
