                   IN THE COURT OF APPEALS OF IOWA

                                      No. 13-0521
                                 Filed March 26, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ADAM PAUL BLOMDAHL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Craig M.

Dreismeier, District Associate Judge.



      A defendant appeals from the judgment and sentence entered following

his conviction of prostitution. AFFIRMED.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Matthew D. Wilber, County Attorney, and Shelly Sedlak, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., McDonald, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                          2


EISENHAUER, S.J.

        Adam Paul Blomdahl appeals from the judgment and sentence entered

following his conviction of prostitution, in violation of Iowa Code section 725.1

(2013). He contends his trial counsel’s assistance was ineffective and the trial

court abused its discretion in sentencing him.

        In October 2012, Blomdahl responded to an escort ad placed on a website

by the Council Bluffs Police Department as part of a sting operation. He called

the number listed and spoke to a law enforcement officer who was acting as an

escort named “Stacy.” During the phone conversation, Blomdahl set up a half-

hour appointment for the listed price of $150 and specified the sex acts he

wanted to perform during the appointment. The next day, he met “Stacy” at a

hotel room and again stated the sex acts he wanted to engage in. Blomdahl

patted his pocket to indicate he had money and showed some of it.

        A jury trial was held in February 2013.       During opening statements,

Blomdahl’s attorney indicated Blomdahl would testify in his defense. He told the

jury,

        So we have Mr. Blomdahl, who will talk about that he had broken
        up in a relationship and had been going on the Internet, both social
        pages and this was his first time he tried an escort page, but he’ll
        testify that he was getting over a relationship and was trying to get
        out and date more, and that’s what he thought he was doing. He
        will testify that he did not make an offer for sex, rather that it was
        suggested to him, and he was kind of shocked at it.

However, Blomdahl never testified.        After the court denied his motion for

judgment of acquittal, Blomdahl’s attorney informed the court it was Blomdahl’s

intention to “rest their case” without putting on evidence. We have no record of

Blomdahl’s desire to testify. The jury found Blomdahl guilty as charged.
                                           3


       At the sentencing hearing, Blomdahl’s attorney did not request a deferred

judgment.1    The district court sentenced Blomdahl to a two-year suspended

sentence with one year of supervised probation, stating:

              The reason for the sentence, your criminal history does—
       although the Court isn’t placing necessarily any weight in regards to
       what has transpired with this arson first case, you do have a
       criminal history based upon the information presented in the court
       file. The Court does not find, nor has it been requested, for your
       receipt of a deferred judgment in regards to this case. The Court
       finds a term of probation is an appropriate sentence in regards to
       this matter because of the nature of the offense as presented to the
       Court, in regards to the circumstances that the Court heard at the
       time of the jury trial.
              But given the history that the Court does have available to it,
       I do find that is an appropriate sentence in regards to this matter
       and will serve the interests of society and also rehabilitating you at
       that point in time.

       Blomdahl contends his trial counsel was ineffective in two respects: (1) in

telling the jury he would testify and contradict the State’s evidence but failing to

present any evidence and (2) in failing to request a deferred judgment or

deferred sentence. While a defendant may raise ineffective-assistance claims on

direct appeal if there are reasonable grounds to believe the record is adequate to

address the claim, the trial record alone will be sufficient to resolve the claim on

direct appeal in only “rare cases.” State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). Where the record does not adequately present the issues, they are more

properly addressed in a postconviction relief hearing. Id.; see also Iowa Code

§ 814.7.   We preserve Blomdahl’s claims for a possible postconviction relief

1
  There is some uncertainty as to whether Blomdahl is eligible to receive a deferred
judgment. No presentence investigation report was prepared. An informal report
indicates Blomdahl was convicted in another state for first-degree arson, a felony, which
would make him ineligible for a deferred judgment. See Iowa Code § 907.3(1)(a)(1).
However, his counsel informed the court the conviction had been reversed or reduced to
a misdemeanor on appeal.
                                         4


action to allow for further development of the record. “Even a lawyer is entitled to

his day in court, especially when his professional reputation is impugned.” State

v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).

      Blomdahl also contends the court considered an impermissible factor—his

failure to request a deferred judgment—in sentencing him. While the imposition

of a sentence is generally within the discretion of the trial court, the use of an

impermissible factor is an abuse of discretion and requires resentencing. State

v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). Here, the district court

cited Blomdahl’s criminal history, the nature of the offense, and the

circumstances under which the offense was committed as reasons for imposing

its sentence.   While the court noted Blomdahl did not request a deferred

judgment, there is no indication the court relied on this as a reason for the

sentence imposed.

      We affirm Blomdahl’s conviction and sentence for prostitution.

      AFFIRMED.
