                   IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0209
                                  Filed June 7, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MITCHELL SCOTT GAHAGAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Lawson

(guilty plea) and Nancy S. Tabor (sentencing), Judges.



      Defendant appeals from his convictions and sentences, following a guilty

plea, for one count of possession with intent to deliver (marijuana), one count of

unlawful possession of a prescription drug (oxycodone), and one count of

unlawful possession of a prescription drug (baclofen).            CONVICTIONS

AFFIRMED; SENTENCES REVERSED AND REMANDED.



      Leah D. Patton of Puryear Law P.C., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ. Tabor, J.,

takes no part.
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POTTERFIELD, Judge.

      Mitchell Gahagan appeals from his convictions and sentences following a

guilty plea, for one count of possession with intent to deliver (marijuana), one

count of unlawful possession of a prescription drug (oxycodone), and one count

of unlawful possession of a prescription drug (baclofen). Gahagan claims trial

counsel was ineffective for (1) allowing him to plead guilty to possession with

intent to deliver (marijuana) without a factual basis to support the charge and (2)

failing to ensure he was advised of the law enforcement initiative (LEI) surcharge

and the 35% surcharge involved with his two convictions for unlawful possession

of a prescription drug. Additionally, he maintains the district court abused its

discretion when sentencing him, claiming the court (1) considered an improper

sentencing factor, namely, pending charges; and (2) wrongly refused to allow a

defense witness to make a statement at the hearing.

I. Background Facts and Proceedings.

      Gahagan was originally charged by trial information with five crimes in

case FECR370741. He entered into a plea agreement with the State, whereby

he would plead guilty to one count of possession with intent to deliver

(marijuana), one count of unlawful possession of a prescription drug

(oxycodone), and one count of unlawful possession of a prescription drug

(baclofen), and the State would dismiss the other two charges.

      On December 7, 2015, the State filed a “memorandum of plea

agreement.”    Both Gahagan and his attorney signed the document, which

provided, in part, “Defendant understands that a $125.00 law enforcement

initiative surcharge will be assessed for any adjudication of guilty or a deferred
                                          3


judgment on a violation under the following Chapters: 124, 155A, 453B, 713,

714, 715A, 716, 719 (719.8), and 725 [725(1), (2), or (3)].” (Alteration in original).

The same day, Gahagan executed written guilty pleas for both charges of

unlawful possession of a prescription drug. Each form contained the following

statement, “I, Mitchell Gahagan, state to the Court that I am charged with

unlawful possession RX drugs, code section 155A.21 [and] 703.1, a serious

misdemeanor.”

       The same day, Gahagan appeared before the court and entered a guilty

plea to the charge of possession with intent to deliver (marijuana). The following

exchange took place between defense counsel and Gahagan:

              Q. Thank you. Mr Gahagan, on June 12, 2015, did you
       possess marijuana? A. Yes.
              Q. And did you know that the substance was marijuana? A.
       Yes.
              Q. And did you possess that marijuana with intent to share
       with other people? A. Yes.
              Q. And did that happen in Scott County, Iowa? A. Yes.

After the court accepted Gahagan’s plea, it scheduled sentencing for January 28,

2016. Gahagan had recently been convicted of failure to affix a drug tax stamp

in another Scott County case (FECR358471),1 and the court scheduled

sentencing for both convictions to occur at the same time.

       At the sentencing hearing, the State recommended the court sentence

Gahagan to a term of incarceration not to exceed five years for his failure-to-affix

conviction in FECR358471 and a total term of incarceration not to exceed five

years for the three convictions in the present case. The State asked the court to


1
 Gahagan’s appeal involving case FECR358471 is also being filed today. See State v.
Gahagan, No. 16-0206, 2017 WL ______, at *1 (Iowa Ct. App. June 7, 2017).
                                         4


order the sentences for the two separate cases to be served consecutively.

Defense counsel asked the court to grant Gahagan probation. She also asked

that Gahagan’s girlfriend, mother, and father be allowed to testify on his behalf;

she indicated they would speak about how good of a father Gahagan was to his

young daughter, his history with addiction to marijuana, and his mental health

struggles. The court responded, “The presentence investigation report includes

history about his mental health that you did not correct, and it includes what the

issues are and his diagnosis, so I have that information before me to consider.”

The court asked the prosecutor if she had any objection to the family members

speaking, and the prosecutor indicated she would “leave that up to the Court.”

              THE COURT: Well, my concern is that the State has a right
      to know what they’re gonna say and to rebut it, and they don’t have
      that information available. They are not victims. Only victims are
      allowed by statute to speak.
              DEFENSE COUNSEL: I think [Gahagan’s mother] wrote a
      letter. I’d be happy to show it to Ms. Cunningham. I’ve not read it.
              THE COURT: Well, if it doesn’t contain any different
      information than is contained in the PSI, it would [not] be helpful.
      Ma’am, if you can’t keep yourself from talking and make comments
      and making gestures to me, then I’m gonna ask you to leave the
      courtroom, please. I cannot consider what you say statutorily
      unless the county attorney agrees to it. Do you understand that?
              AUDIENCE MEMBER: I understand.
               THE COURT: I understand that you’re a family member and
      this is difficult on you, and I take no fault and I show no fault toward
      any of the family members. This is not your fault. It’s his
      responsibility to provide all the information that’s necessary to the
      probation officer and if he has not done that, that’s on him, not on
      you, and I can’t consider—you can talk, but I cannot consider
      anything you say because it’s not statutorily allowed, so if you
      would like to talk—

The family members were not allowed to speak on Gahagan’s behalf before the

court imposed the sentences, stating in part:
                                        5


              You had—it doesn’t matter that it was two years old. You
      committed another crime and admitted to committing another crime
      while you still had other charges pending and cases pending.
      You’ve been rearrested since these. Now, they’re allegations, but
      you still have been arrested, and that is not something that’s—
      that’s something that’s in violation of your pretrial release.
              You have a long history for someone so young, 31 years old,
      long criminal history that spans many, many years and takes up at
      least four and a half or five pages of the presentence investigation
      reports. Because of your pending charges and because of your
      past volatile behavior, you don’t qualify for any kind of residential
      treatment facility in the community. You have very little work
      history.
              ....
              This is a case where I don’t believe that probation is
      appropriate, and I’m going to sentence you [accordingly].
              ....
              In FECR 358441, it is my sentence that you are sentenced
      to an indeterminate term of confinement not to exceed five years,
      pay a fine of $750 plus costs. Under File No. FECR 370741 you’re
      sentenced under Count 1 to an indeterminate term of confinement
      not to exceed five years, a fine of $750. Under Count 4, you’re
      sentenced to an indeterminate term not to exceed one year in the
      Scott County Jail, pay a fine of $315. Under Count 5 an
      indeterminate term of confinement in the Scott County Jail for one
      year and pay a fine of $315. I will allow the sentences under
      370741 to be served concurrent with each other, but I do think that,
      based on your history, that there is aggravating circumstances and
      it should be that the sentence in the other—under—in both cases
      should run consecutive to each other.

Gahagan appeals.

II. Discussion.

      A. Ineffective Assistance.

      Gahagan makes two claims of ineffective assistance; he maintains trial

counsel was ineffective for (1) allowing him to plead guilty to possession with

intent to deliver (marijuana) without a factual basis to support the charge and (2)

failing to ensure he was advised of the LEI surcharge involved with his two

convictions for unlawful possession of a prescription drug.
                                          6

       We review claims of ineffective assistance de novo. State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006). “To establish his claim of ineffective assistance of

counsel, [Gahagan] must demonstrate (1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.” Id. (citing Strickland v.

Washington, 466 U.S. 668, 687–88 (1984)).           Gahagan’s claims fail if either

element is lacking. See Everett v State, 789 N.W.2d 151, 159 (Iowa 2010). We

consider the cumulative effect of possible errors when considering a defendant’s

claims of ineffective assistance. See State v. Clay, 824 N.W.2d 488, 500 (Iowa

2012). We resolve claims of ineffective assistance on direct appeal only when

the record is adequate to do so. See id. Here, we find the record adequate.

       1. Factual Basis. Gahagan maintains trial counsel was ineffective for

allowing him to plead guilty to possession with intent to deliver (marijuana) when

there was not a factual basis to support a finding he intended to sell the

marijuana. He claims that his admission he intended to “share” the marijuana

supports a conviction for a lesser-included offense of accommodation.

       In determining whether a factual basis supports Riley’s guilty pleas, we

consider the entire record, as a whole, to see if the elements of the offenses

have been satisfied. See State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010).

“A factual basis can be discerned from four sources: (1) inquiry of the defendant,

(2) inquiry of the prosecutor, (3) examination of the presentence report, and (4)

minutes of evidence.” Id. at 768. Moreover, “the record does not need to show

the totality of the evidence necessary to support a guilty conviction, . . . it need

only demonstrate facts that support the offense.” Id.
                                            7


       Gahagan’s claim is without merit.               A defendant is guilty of an

accommodation offense if the prosecution proves the defendant delivered or

possessed with intent to deliver one-half ounce or less of marijuana, which was

not offered for sale. See Iowa Code § 124.410. Here, the minutes of testimony

establish a bag containing approximately 20.2 grams was located in Gahagan’s

vehicle while another 2.4 grams of marijuana were located on his person. The

total amount, 22.6 grams, is more than one-half ounce.            See Weights and

Measures,     Merriam-Webster        (May       22,    2017),   https://www.merriam-

webster.com/table/collegiate/weight.htm (defining the metric equivalent of an

ounce as 28.350 grams).        Additionally, the Iowa Code defines “delivery” or

“deliver” as “the actual, constructive, or attempted transfer from one person to

another of a controlled substance, whether or not there is an agency

relationship.” Iowa Code § 124.101(7). The definition does not require one to

sell or make a profit in order to have “delivered.” Gahagan’s admission that he

intended to “share” the marijuana with other people is sufficient to establish a

factual basis for possession with intent to deliver.

       2. Surcharges.      Gahagan claims trial counsel was ineffective for not

ensuring he was advised of the 35% surcharge and the $125 LEI surcharge for

his convictions for unlawful possession of a prescription drug. Here, the plea

agreement memo and the guilty pleas—when read in conjunction—advised

Gahagan that the LEI surcharge is assessed on violations of chapter 155A and

that his guilty pleas involved a crime found in chapter 155A. Additionally, the

guilty-plea forms indicated Gahagan was pleading guilty to
                                         8


      [a] serious misdemeanor, the Court can sentence me to jail for up
      to one year, and fine me between $315.00 and $1875.00, plus
      surcharge and court costs. If the charge is a 1st offense
      possession of marijuana, the maximum jail sentence is six months
      and a fine up to $1000 plus surcharge and court costs.

The form did not indicate that the surcharge was 35% of the fine.

      Iowa Rule of Criminal Procedure 2.8(2)(b)(2) requires the plea court to tell

Gahagan the “mandatory minimum punishment, if any” and the “maximum

possible punishment” before accepting his guilty plea. See State v. Fisher, 877

N.W.2d 676, 685 (Iowa 2016). A defendant pleading guilty has a right to be

informed of surcharges levied on fines. Id. at 678, 686 (“For rule 2.8 purposes,

we see no meaningful difference between a fine and a built-in surcharge on a

fine.”). We are not persuaded the general reference to surcharges amounted to

substantial compliance.    The court was obligated to inform Gahagan of the

minimum fine. The plea form identified the number as $315. This was not the

minimum fine. With the 35% surcharge, the minimum fine would have been

$560.25. See id. at 685 (noting “the surcharges made it effectively impossible

that [the defendant] could ever actually be fined $315, the mandatory minimum

listed on the plea form” and “[i]n fact, the actual dollar minimum was $560.25”).

      There is nothing in the direct-appeal record as to whether Gahagan’s trial

counsel had advised him of the specific surcharges before Gahagan executed

his guilty pleas. Such evidence is significant to a prejudice analysis, regardless

of our view of the potential viability of Gahagan’s underlying claim. See State v.

Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

      Because we conclude the record is not adequate to resolve this claim in

the specific circumstances of this case, we affirm Gahagan’s convictions and
                                         9


preserve his claim alleging deficiencies in the plea colloquy for possible

postconviction proceedings. See, e.g., State v. Draper, No. 16-0336, 2017 WL

2181217, at *4 (Iowa Ct. App. May 17, 2017) (preserving similar challenge);

State v. Marcott, No. 16-0869, 2016 WL 7393946, at *4 (Iowa Ct. App. Dec. 21,

2016) (same).

       B. Sentencing.

       Gahagans maintains the district court abused its discretion when

sentencing him, claiming the court (1) considered an improper sentencing factor,

namely, pending charges; and (2) wrongly refused to allow defense witnesses to

make a statement at the hearing.

       We review the sentence imposed in a criminal case for correction of errors

at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not reverse

“absent an abuse of discretion or some defect in the sentencing procedure.” Id.

       Here, before imposing sentence, the court stated the following:

               You had—it doesn’t matter that it was two years old. You
       committed another crime and admitted to committing another crime
       while you still had other charges pending and cases pending.
       You’ve been rearrested since these. Now, they’re allegations, but
       you still have been arrested, and that is not something that’s—
       that’s something that’s in violation of your pretrial release.

“It is a well-established rule that a sentencing court may not rely upon additional,

unproven, and unprosecuted charges unless the defendant admits to the charges

or there are facts presented to show the defendant committed the offenses.” Id.

at 725. The State urges us to find the court did not rely on the pending charges

even though the court “mentioned” them. The State claims that because the

court “explicitly noted that the arrest involved only allegations,” we should not
                                         10


draw an inference of improper sentencing considerations. However, we note that

the court did not expressly disclaim the pending charges.          See State v.

Mathewson, 684 N.W.2d 243, 244 (Iowa 2004) (“But we cannot ignore the error

here by assuming the sentencing court did not consider it. In the first place, the

court did not state the inadmissible evidence would not be a factor in

determination.”).

       Additionally, “[w]hen a sentencing court has discretion, it must exercise

that discretion.” State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). “Failure to

exercise that discretion calls for a vacation of the sentence and a remand for

resentencing.” Id. Iowa Code section 901.2 mandates the court “shall receive

from the state, from the judicial district of department of correctional services,

and from the defendant any information which may be offered which is relevant

to the question of sentencing.” Moreover, the court “may consider information

from other sources.” Iowa Code § 901.2(1) (emphasis added). Here, the court

appeared to believe it did not have the discretion to decide whether to hear from

Gahagan’s witnesses at the sentencing hearing. The court stated, “They are not

victims. Only victims are allowed by statute to speak,” “I cannot consider what

you say statutorily unless the county attorney agrees to it. Do you understand

that?” and “I can’t consider—you can talk, but I cannot consider anything you say

because it’s not statutorily allowed.”

       Based on the court’s reference to Gahagan’s pending charges and the

incorrect understanding that the court was prevented from hearing from
                                         11


Gahagan’s witnesses at sentencing, we reverse Gahagan’s sentences and

remand for resentencing.2

       CONVICTIONS          AFFIRMED;         SENTENCES       REVERSED         AND

REMANDED.




2
  Because we remand for resentencing, we do not address Gahagan’s claim that the
court failed to provide adequate reasons on the record for his consecutive sentences.
