                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1828
                            Filed September 12, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEREK E. UELIGGER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Adair County, Martha L. Mertz (plea)

and Terry R. Rickers (sentencing), Judges.



      Derek Ueligger appeals his sentences for vehicular homicide. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.




      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      Derek E. Ueligger appeals his sentences for two counts of vehicular

homicide. On appeal, Ueligger contends his trial counsel was constitutionally

ineffective for failing to object to the inclusion of three of the victim impact

statements submitted. We affirm.

      I.     Background Facts and Proceedings

      On November 2, 2016, Ueligger operated a vehicle while under the

influence of multiple controlled substances. Ueligger’s vehicle crossed the center

line on a highway and struck a vehicle carrying four women. Two women, Dawn

Christensen and Norma Caltrader, died as a result of the accident. The other two

women, Marilyn Ehrsam and Betty Schultz, were seriously injured.

      On February 14, 2017, the State charged Ueligger with two counts of

vehicular homicide and two counts of serious injury by motor vehicle, in violation

of Iowa Code sections 707.6A and 321J.2(1) (2016).

      In July, Ueligger and the State entered into a plea agreement where

Ueligger would plead guilty to the two vehicular homicide counts and the State

would dismiss the serious injury by motor vehicle charges. The parties did not

reach an agreement as to sentencing, leaving them free to argue for concurrent or

consecutive sentences. On August 21, Ueligger pled guilty to the two vehicular

homicide charges as agreed and admitted to driving under the influence of four

different types of controlled substances.

      The sentencing hearing was held October 19.          Twelve victim impact

statements, both oral and written, were provided to the sentencing court. Two of
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these statements were from Ehrsam and Schultz. A third statement came from

Helen Nevins, the cousin of one of the deceased victims. The court sentenced

Ueligger to two consecutive twenty-five-year terms of imprisonment and to pay

restitution to all individuals involved. The remaining two counts were ordered to

be dismissed if the pleas were not appealed. Ueligger appeals his sentence only.

         II.    Standard of Review

         Ueligger claims he was provided ineffective assistance of counsel at his

sentencing.      Claims of ineffective assistance are generally preserved for

postconviction relief, but we will consider them on direct appeal if the record is

adequate. State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015). Because ineffective-

assistance-of-counsel claims implicate constitutional rights, we review the claims

de novo. State v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017).

         III.   Analysis

         The constitutional right to counsel extends to sentencing. State v. Boggs,

741 N.W.2d 492, 506 (Iowa 2007). “Ineffective-assistance-of-counsel claims

require a showing by a preponderance of the evidence both that counsel failed an

essential duty and that the failure resulted in prejudice.” State v. Schlitter, 881

N.W.2d 380, 388 (Iowa 2016). Prejudice exists where there is a reasonable

probability the outcome of the proceeding would have been different without

counsel’s deficient conduct. Dempsey v. State, 860 N.W.2d 860, 868–69 (Iowa

2015).
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      A. Failure of an essential duty

      Ueligger claims his trial counsel rendered ineffective assistance in failing to

object to three of the victim impact statements considered by the court—those of

Ehrsam, Schultz, and Nevins. Iowa Code section 915.10 defines who may provide

a victim impact statement under section 915.21.

             “Victim” means a person who has suffered physical,
      emotional, or financial harm as the result of a public offense or a
      delinquent act, other than a simple misdemeanor, committed in this
      state. “Victim” also includes the immediate family members of a
      victim who died or was rendered incompetent as a result of the
      offense or who was under eighteen years of age at the time of the
      offense.

Iowa Code § 915.10(3).

      The court has limited “immediate family members” of a victim to only the

spouse and those within the second degree of consanguinity or affinity (i.e.

parents, grandparents, siblings, children, and grandchildren). Lopez, 872 N.W.2d

at 175; State v. Sumpter, 438 N.W.2d 6, 8 (Iowa 1989) (expressly adopting the

definition of “immediate family” as within the second degree of consanguinity or

affinity). Under our law, as a cousin, Nevins does not count as an immediate family

member of a victim who died, and so she does not have a statutory right to present

a victim impact statement under section 915.21. Counsel erred in failing to object

to the consideration of the victim impact statement submitted by Nevins.

      A sentencing court may consider an unproven or unprosecuted offense

during sentencing if the facts before the court show the accused committed the

offense or the defendant admits it. See State v. Gonzalez, 582 N.W.2d 515, 516

(Iowa 1998). In the plea colloquy, Ueligger described his offense:
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                THE DEFENDANT: I got behind the wheel of a car and was
          under the influence of drugs. As I was driving down the highway, I
          crossed the centerline and had a car accident with an oncoming
          vehicle that resulted in the death of two women and the injury of two
          others.

    Similarly, during his sentencing hearing, Ueligger acknowledged the pain he

    caused all four families and all four women. As part of his plea agreement,

    Ueligger agreed to pay victim restitution1 to Ehrsam and Schultz for their injuries,

    despite the dismissal of the counts specific to them. In other words, Ueligger

    admitted the serious injury offenses. Moreover, Ehrsam and Schultz suffered

    their physical, emotional, and financial harm as a part of the same course of

    conduct from which the vehicular homicide charges arose. See State v. Manser,

    626 N.W.2d 872, 874 (Iowa Ct. App. 2001) (noting a sentencing court may look

    to facts and circumstances surrounding the crime). Ehrsam and Schultz fall within

    the statutory definition of “victim” under section 915.10, and counsel was not

    ineffective for failing to object to the court’s receipt of their statements.

          B. Prejudice

          To establish prejudice and prevail on his claim of ineffective assistance,

Ueligger must show the outcome of the sentencing proceeding would have been

different.     State v. Fannon, 799 N.W.2d 515, 523 (Iowa 2011).                Sentencing

decisions are granted a strong presumption in the court’s favor. State v. Hopkins,

860 N.W.2d 550, 553 (Iowa 2015).              “[W]e trust that our district courts, when

weighing [victim impact] statements as part of the sentencing determination, will




1
  For purposes of victim restitution, “‘Victim’ means a person who has suffered pecuniary
damages as a result of the offender’s criminal activities.” Iowa Code § 910.1(5).
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filter out improper or irrelevant evidence.” State v. Sailer, 587 N.W.2d 756, 764

(Iowa 1998).

       For Nevins’s statement, Ueligger claims it included a prejudicial harsh

sentencing recommendation.         Nevins urged consecutive confinement and

expressed the opinion Ueligger should never get out. Multiple family members of

the deceased women expressed similar opinions on the length of time Ueligger

should be in prison and requested he be given the maximum sentence. The

statement did not include the prejudicial type of information not otherwise available

to the judge. See Sumpter, 438 N.W.2d at 9. Although the statement expressed

hostility, it can naturally be assumed that family members would be bitter toward a

defendant in such a case. See id.

       Reviewing the transcript and sentencing order, there is no indication

Nevins’s victim impact statement affected the outcome of the proceeding. See id.

(holding an assertion the inadmissible statements could have affected the court’s

judgment was insufficient to find error and the statements told the judge little, if

anything, that was not already apparent). Without clear evidence to the contrary,

we assume the district court will filter out improper or irrelevant evidence in its

sentencing determination.    Sailer, 587 N.W.2d at 764. The sentencing court

mentioned devastation to all the families involved as described by one of the

daughter’s statements.     The court also discussed Ueligger’s intelligence and

serious substance-abuse problem leading to inevitable tragedy and disaster. The

court did not mention Nevins’s statement, nor did she provide her statement in

court. The court imposed consecutive sentences because of the devastation and
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reckless irresponsibility demonstrated by Ueligger in driving while impaired.

Ueligger has failed to show the sentencing proceeding would have had a different

outcome if counsel had objected to the inclusion of Nevins’s victim impact

statement. Ueligger failed to demonstrate he was prejudiced by the court’s receipt

of Nevins’s statement. We affirm Ueligger’s sentences.

      AFFIRMED.
