                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0797
                                Filed April 6, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ASCENCION ANIBAL VARGAS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



       Defendant appeals his conviction for possession of a simulated controlled

substance with intent to deliver.      CONVICTIONS AFFIRMED, SENTENCE

VACATED, AND CASE REMANDED FOR RESENTENCING.




       Joseph C. Glazebrook of Glazebrook, Moe, & Hurd, L.L.P., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Timothy M. Hau and Tyler J.

Buller, Assistant Attorneys General, for appellee.




       Heard by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Defendant Ascencion Vargas appeals his conviction for possession of a

simulated controlled substance with intent to deliver. We find the parties and the

district court improperly believed a prison sentence was mandatory, as probation

was not considered. We also find Vargas did not receive ineffective assistance

due to defense counsel’s failure to claim Iowa Code section 901.10 (2013)

unconstitutionally punishes those who exercise their right to a jury trial. We

affirm Vargas’s conviction, vacate his sentence, and remand for resentencing.

       I.     Background Facts & Proceedings

       Vargas was charged with possession of more than five grams of a

simulated controlled substance with intent to deliver, in violation of section

124.401(1)(b)(7) (2013), a class B felony, and failure to affix a drug tax stamp, in

violation of sections 453B.3 and 453B.12, a class “D” felony. The State alleged

the substance was simulated methamphetamine. After a jury trial, Vargas was

found guilty of the offenses charged.

       At the sentencing hearing, the prosecutor stated, “[B]eing convicted of a

Class B methamphetamine—or simulated methamphetamine case, prison is

mandatory in this case.” Defense counsel agreed, stating, “I would concur with

the same recommendations made by the State. [The prosecutor] is correct that

on Count I it does require a prison sentence with a mandatory minimum of one-

third of that sentence.”

       The district court stated it looked at various factors, including prior

convictions and the fact the present offense occurred while Vargas was on

probation for a previous offense. The court stated:
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       But the legislature, in its wisdom, has created a crime set for the
       sale or the possession of intent to sell a simulated drug, which
       carries the same penalties as that for an actual controlled
       substance. The legislature sets the law in the state, and it’s the job
       of the Court to enforce the laws as it’s written by the legislature.
              The jury, having found you guilty of that crime, it is my
       responsibility as a judge to impose judgment consistent with the
       laws set forth by the legislature in the findings of the jury, and that’s
       what I will be doing in this case.

The court sentenced Vargas to a term of imprisonment not to exceed twenty-five

years on the charge of possession with intent to deliver and five years on the

charge of failure to affix a drug tax stamp, to be served concurrently. The court

did not mention a suspended sentence or probation.

       On the sentencing order1 the court checked a box next to the statement:

       PROBATION IS DENIED because it is unwarranted. Defendant is
       committed to the custody of the Director of the Iowa Department of
       Correctional Services (DCS) for a determination of the appropriate
       place of confinement, all as provided by Iowa Code Sections 901.7
       and 902.5. Granting probation is denied because probation would
       not provide maximum opportunity for rehabilitation of defendant and
       protection of the public from further offenses.

Vargas appeals his conviction of possession of more than five grams of a

simulated controlled substance with intent to deliver.

       II.    Mandatory Prison Sentence

       Vargas claims he should be resentenced because the court incorrectly

believed it did not have discretion to suspend his sentence and place him on

probation. Under section 901.3(3)(e), the court may not suspend a sentence for

a violation of section 124.401(1)(a) or (b) “and the controlled substance is

methamphetamine.” Vargas claims this section should not apply to him because


1
  The caption on the form is “Plea/Sentencing Order—Felony Drug,” and incorrectly
states Vargas had pled guilty.
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he was not convicted of possession of methamphetamine with intent to deliver

but was convicted of possession of simulated methamphetamine with intent to

deliver. He claims the court could have suspended his sentence and placed him

on probation. He asks his sentence be vacated and remanded for resentencing.

      “We review sentencing decisions for an abuse of discretion or defect in the

sentencing procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).

“An abuse of discretion will only be found when a court acts on grounds clearly

untenable or to an extent clearly unreasonable.”         Id.   “When a court has

discretion in sentencing, ‘it must exercise that discretion.’” State v. Johnson, 630

N.W.2d 583, 590 (Iowa 2001) (citation omitted). If a court fails to exercise its

discretion, based on an incorrect belief it does not have discretion, the sentence

must be vacated and the case remanded for resentencing. See id.

      Under section 124.401(1), a person may not possess with the intent to

deliver a controlled substance, “a counterfeit substance, or a simulated controlled

substance.” A violation of section 124.401(1)(b) includes the possession of more

than five grams but not more than five kilograms of methamphetamine,

counterfeit methamphetamine, or simulated methamphetamine.            See State v.

Meyer, 705 N.W.2d 676, 678 (Iowa Ct. App. 2005) (noting chapter 124 “prohibits

delivery, manufacture, or possession of simulated and counterfeit controlled

substances”).
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       In general, a court may suspend a sentence and place a defendant on

probation upon such terms and conditions as it may require.2                  Iowa Code

§ 907.3(3); State v. Thomas, 659 N.W.2d 217, 221 (Iowa 2003). The statute lists

several exceptions where the court may not suspend a defendant’s sentence,

including when, “The offense is a violation of section 124.401, subsection 1,

paragraph ‘a’ or ‘b’, and the controlled substance is methamphetamine.” Iowa

Code § 907.3(3)(e); State v. Biddle, 652 N.W.2d 191, 200 (Iowa 2002).

       On appeal, the State does not argue section 907.3(3)(e) prohibits the

court from granting a suspended sentence when a person has violated section

124.401(1)(a) or (b) by possession of a simulated controlled substance with

intent to deliver. Instead, the State claims the court exercised its discretion and

denied a suspended sentence. The State claims this is shown by the check in

the box next to the paragraph denying probation on the sentencing form.

       Upon our review of the record from the sentencing hearing, we determine

the district court left the impression it mistakenly believed the sentence was

mandatory. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa 2010) (noting

resentencing may be necessary where the court “left the impression that the trial

court may have mistakenly believed that consecutive sentences were mandatory”

(quoting State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989))). The court stated

the offense of possession of a simulated controlled substance “carries the same

penalties as that for an actual controlled substance.” Under section 907.3(3)(e),



2
  The statute does not apply to defendants convicted of forcible felonies or a violation of
chapter 709 committed by person who is a mandatory reporter of child abuse and the
victim is under the age of eighteen. Iowa Code § 907.3.
                                          6


however, a violation of section 124.401(1)(a) or (b) involving methamphetamine

is treated differently than a violation involving a simulated controlled substance.

       Also, the prosecutor and defense counsel incorrectly told the court a

prison sentence was mandatory in this case.            Thus, no arguments were

presented to the court on the issue of whether or not a suspended sentence

would be appropriate for Vargas.       We conclude the check on a box in the

sentencing order does not cure the problems arising from the misinterpretation of

section 907.3(3)(e) and the lack of arguments presented at sentencing.

       We conclude Vargas’s sentence for possession of more than five grams of

a simulated controlled substance with intent to deliver must be vacated and the

case remanded for resentencing.

       III.   Ineffective Assistance

       Vargas claims he received ineffective assistance because defense

counsel did not argue at the time of sentencing section 901.10 unconstitutionally

punishes defendants who exercise their right to a jury trial. Section 901.10(2)

provides:

       [I]f the sentence under section 124.413 involves an amphetamine
       or methamphetamine offense under section 124.401, subsection 1,
       paragraph “a” or “b”, the court shall not grant any reduction of
       sentence unless the defendant pleads guilty. If the defendant
       pleads guilty, the court may, at its discretion, reduce the mandatory
       minimum sentence by up to one-third. If the defendant additionally
       cooperates in the prosecution of other persons involved in the sale
       or use of controlled substances, and if the prosecutor requested an
       additional reduction in the defendant’s sentence because of such
       cooperation, the court may grant a further reduction in the
       defendant’s mandatory minimum sentence, up to one-half of the
       remaining mandatory minimum sentence.
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Vargas claims this statute unconstitutionally rewards defendants who choose to

plead guilty and punishes those who choose to exercise their right to trial.

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the applicant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

       In Biddle, the Iowa Supreme Court determined section 901.10 did not

violate a defendant’s right against self-incrimination under the Fifth Amendment,

the right to a jury trial as guaranteed by the Sixth Amendment, or the defendant’s

corresponding rights under the Iowa Constitution. 652 N.W.2d at 200–02. The

court noted, “[N]ot every burden on the exercise of a constitutional right, and not

every pressure or encouragement to waive such a right, is invalid. Specifically,

there is no per se rule against encouraging guilty pleas.” Id. at 202 (alteration in

original) (quoting Corbett v. New Jersey, 439 U.S. 212, 218–19 (1978) (footnote

omitted)); cf. United States v. Jackson, 390 U.S. 570, 583 (1968) (noting a

problem with a statute instituting the death penalty only in cases where a

defendant was tried by a jury was “not that it necessarily coerces guilty pleas and

jury waivers but simply that it needlessly encourages them”).              “[S]ection

901.10(2) gives the sentencing court discretion to reduce the mandatory

minimum sentence of those pleading guilty. A defendant therefore could receive

the mandatory minimum sentence whether or not he or she pleads guilty.”

Biddle, 652 N.W.2d at 202. Thus, the statute did not violate the defendant’s Fifth

or Sixth Amendment rights or his rights under the Iowa Constitution. Id.
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      The Iowa Supreme Court also considered whether section 901.10(2)

violated the defendant’s rights under the equal protection clauses of the United

States and Iowa Constitutions. Id. The court concluded there was no violation of

the defendant’s equal protection rights, as the statute was “rationally related to

the government’s interest in curbing the increasing and widespread use of

methamphetamine, a highly addictive drug.” Id. at 203.

      Vargas claims Biddle should be overruled, stating the court did not engage

in an independent analysis under the Iowa Constitution. We are not at liberty to

overrule controlling supreme court precedent. See State v. Beck, 854 N.W.2d

56, 64 (Iowa Ct. App. 2014). We conclude Vargas has not shown he received

ineffective assistance due to defense counsel’s failure to raise an argument

seeking to overrule the case; if such an argument had been raised it would have

been rejected.   See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015)

(finding defense counsel has no duty to pursue a course of action which would

have been meritless).

      We affirm Vargas’s convictions, vacate his sentence, and remand for

resentencing.

      CONVICTIONS        AFFIRMED,     SENTENCE       VACATED,      AND    CASE

REMANDED FOR RESENTENCING.
