                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1242 / 13-0088
                             Filed February 5, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TAMMIE M. SPEIGHTS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith (guilty

plea) and Paul L. Macek (sentencing), Judges.



      Tammie Speights appeals from a judgment and sentence following her

plea of guilty to possession with intent to deliver. AFFIRMED.




      G. Brian Weiler, Davenport, for appellant.

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

General, Michael J. Walton, County Attorney, and Kelly Cunningham and Steven

A. Berger, Assistant County Attorneys, for appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
                                          2


DOYLE, J.

         Tammie Speights appeals from the judgment and sentence entered

following her plea of guilty to possession with intent to deliver ten grams or less

of crack cocaine, raising several claims of ineffective assistance of counsel

relating to her guilty plea and sentencing proceedings. Upon our review, we

affirm Speights’s conviction.      Because the sentencing court considered the

proper factors and did not consider any improper factors such as uncharged or

unproven conduct in sentencing Speights, we conclude her claim of ineffective

assistance as to that issue fails. We preserve for a possible postconviction relief

proceeding Speights’s claim of ineffective assistance relating to her entry of a

guilty plea without being fully informed of the charge’s mandatory minimum

sentence.

I.       Prior Proceedings

         In 2012, Tammie Speights pled guilty to possession with intent to deliver

ten grams or less of crack cocaine. Speights does not challenge the factual

basis of her plea.        The district court sentenced Speights to serve an

indeterminate ten-year term of incarceration, with a one-third mandatory

minimum pursuant to Iowa Code section 124.413 (2011).             Speights appeals.

Additional facts relevant to the claims Speights raises on appeal will be set forth

below.

II.      Guilty Plea

         Speights contends her trial counsel was ineffective in allowing the district

court to accept her guilty plea without fully informing her of the mandatory

minimum sentence.       Speights also claims her trial counsel was ineffective in
                                           3


failing to file a motion in arrest of judgment to challenge the adequacy of her

guilty plea.1

       We review claims of ineffective assistance of counsel de novo. See State

v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). To prevail, Speights must show

(1) counsel breached an essential duty and (2) prejudice resulted. Strickland v.

Washington, 466 U.S. 668, 687 (1984).           The claim fails if either element is

lacking. Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).

       Generally, we do not resolve claims of ineffective assistance of counsel on

direct appeal. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). If we determine

the claim cannot be addressed on appeal, we must preserve it for a

postconviction relief proceeding, regardless of our view of the potential viability of

the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

       The State urges us to preserve Speights’s claim for possible

postconviction proceedings because the record is inadequate to determine

whether trial counsel breached an essential duty where “[i]t is entirely possible”

trial counsel did advise Speights of the mandatory minimum. At the outset, while

we agree Speights’s claim should be preserved, we note that in this case

evidence of whether Speights was apprised by her counsel of the mandatory

minimum sentence she faced could be significant to an analysis of the prejudice

prong of her claim—not the breach of duty prong, as we find the breach of duty

prong to be established.



1
  See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a
guilty plea proceeding by motion in arrest of judgment shall preclude the defendant’s
right to assert such challenge on appeal.”).
                                         4


       Due process requires the defendant enter his guilty plea voluntarily
       and intelligently. If a plea is not intelligently and voluntarily made,
       the failure by counsel to file a motion in arrest of judgment to
       challenge the plea constitutes a breach of an essential duty. In
       order to ensure a guilty plea is voluntarily and intelligently made,
       the court must articulate the consequences of the plea to the
       defendant.

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citations and quotation marks

omitted). Iowa Rule of Criminal Procedure 2.8(2)(b) provides the court with a

blueprint for a guilty plea proceeding. The rule provides in relevant part:

       Before accepting a plea of guilty, the court must address the
       defendant personally in open court and inform the defendant of,
       and determine that the defendant understands, the following:
             ....
             (2) The mandatory minimum punishment, if any, and the
       maximum possible punishment provided by the statute defining the
       offense to which the plea is offered.

Iowa R. Crim. P. 2.8(2)(b). Substantial compliance with this rule is required.

Straw, 709 N.W.2d at 134.

       The record below provides no mention during the plea colloquy of the

mandatory minimum punishment Speights could face by pleading guilty to the

charge in this case. Accordingly, when Speights’s attorney did not bring this

matter to the court’s attention or file a motion in arrest of judgment on this

ground, her counsel failed to perform an essential duty. See id.; see also State

v. Hallock, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009) (recognizing counsel’s

duty to correct any omission by the court during plea proceedings so that the

defendant may be fully informed when entering a guilty plea).

       But Speights can only succeed on her ineffective-assistance claim by

establishing both that her counsel failed to perform an essential duty and that

prejudice resulted.    See Anfinson, 758 N.W.2d at 499 (noting a claim of
                                            5

ineffective assistance of counsel fails if either element is lacking); see also Hill v.

Lockhart, 474 U.S. 52, 59 (1985) (holding that to show counsel was ineffective in

the context of a guilty plea, “the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial”). There is nothing in the record before us

reflecting whether or not trial counsel advised Speights about the possibility of

the mandatory minimum one-third sentence. Such evidence of whether Speights

was aware of that possibility could be significant to any prejudice analysis. See

Straw, 709 N.W.2d at 138. As in Straw, “This case exemplifies why claims of

ineffective assistance of counsel should normally be raised through an

application for postconviction relief. In only rare cases will the defendant be able

to muster enough evidence to prove prejudice without a postconviction relief

hearing.” Id.

       Accordingly, we affirm Speights’s conviction and preserve this claim for a

possible postconviction relief proceeding.

III.   Sentencing Decision

       Speights contends her trial counsel was ineffective in failing to object to

the district court’s “consideration of improper factors in sentencing.”              This

contention is premised on a claim of defective sentencing by the district court. 2

In delivering Speights’s sentence,3 the court stated:


2
  We observe it was unnecessary for Speights’s claim to be framed as one of ineffective
assistance of counsel; a defendant is not required to raise an alleged sentencing defect
in the trial court in order to preserve claimed error on that ground. See State v. Wilson,
294 N.W.2d 824, 825 (Iowa 1980); see also State v. Bruegger, 773 N.W.2d 862, 872
(Iowa 2009).
3
  The court sentenced Speights to a term of incarceration and declined her request for
placement in drug treatment court.
                                        6


              COURT: My notes also indicate that in 1995 you were
      convicted of Manufacturing or Delivering a Controlled Substance.
              DEFENDANT: Yes.
              ....
              COURT: Back in 2005, you had Possession of a Controlled
      Substance. 2006, Possession of Drug Paraphernalia. You spent
      five days in jail for Possession of Drug Paraphernalia, it appears
      that was in 2007.
              The presentence investigation report says that you have not
      been employed in over two years, and you’ve made your livelihood
      selling drugs. The Minutes of Testimony have you telling the police
      that you’ve been selling drugs for about the last 25 years. For the
      last six months you’ve been selling them for your ex-son-in-law.
              . . . What has to do with your sentence is your criminal
      history, the fact that you are indeed a drug dealer.

      Speights claims the court’s statement that she is “indeed” a drug dealer,

coupled with the court’s reference to Speights selling drugs for “25 years,” leads

to a conclusion the court considered her history of selling drugs in determining

her sentence.

      “Sentencing decisions are cloaked with a strong presumption in their

favor. A sentence will not be upset on appellate review unless the defendant

demonstrates an abuse of trial court discretion or a defect in the sentencing

procedure, such as trial court consideration of impermissible factors.” State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). One impermissible factor is the

consideration of another criminal offense where the facts before the court do not

show the defendant committed the offense. See State v. Longo, 608 N.W.2d

471, 474 (Iowa 2000). It is a well-established rule that a sentencing court may

not rely upon additional, unproven, and unprosecuted charges where the

defendant has not admitted to the charges or facts are not presented to show the

defendant committed the offenses. See State v. Formaro, 638 N.W.2d 720, 725

(Iowa 2002).     “We will not draw an inference of improper sentencing
                                        7

considerations which are not apparent from the record.” Id. “We will set aside a

sentence and remand a case to the district court for resentencing if the

sentencing court relied upon charges of an unprosecuted offense that was

neither admitted to by the defendant nor otherwise proved.” State v. Sailer, 587

N.W.2d 756, 758 (Iowa 1998) (quotation marks omitted).

      However, “[t]here is no general prohibition against considering other

criminal activities by a defendant as factors that bear on the sentence to be

imposed.” Longo, 608 N.W.2d at 474. A court may consider an unproven or

unprosecuted offense when sentencing a defendant if the facts before the court

show the accused committed the offense, or the defendant admits it. See State

v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).             Our supreme court has

specifically permitted sentencing courts to consider the contents of a

presentence investigation report (PSI) in its sentencing decision where the

defendant did not object to the portion of the PSI being considered. Id.

      As set forth above, the sentencing court did refer to Speights’s “criminal

history,” that she had been convicted of manufacturing or delivering a controlled

substance, possession of a controlled substance, and possession of drug

paraphernalia. However, these were not unproven charges or improper matters

for the sentencing court to consider, or portions of the PSI that Speights objected

to being considered. In addition to those listed by the court, the PSI report sets

forth Speights’s convictions for possession of a controlled substance in 1992,

possession of drug paraphernalia in 2003, theft in 1991, 2003, 2006, and 2007,

numerous failures to appear, and convictions for resisting arrest in 1995 and

2001. The PSI also includes these statements from the report’s preparer: “The
                                        8


defendant has not been legitimately employed in over two years. It would appear

that most of her livelihood came from the sale of drugs during this time,” and “Her

drug of choice is crack cocaine and she is an admitted drug dealer.” Under the

“Defendant’s Version” section of the PSI it states: “I was in possession of crack

cocaine, which I used and sold.” Speights did not object to or challenge the

statements contained in the PSI.      The court did not abuse its discretion in

considering them.

      The court’s reference to the minutes of testimony is a horse of a different

color. Immediately after Speights’s allocution, the court began going through

Speights’s criminal history from the PSI.    After a short colloquy with Speight

concerning her 1995 conviction, and after mentioning her other drug convictions,

the court stated the minutes of testimony “have you telling the police that you’ve

been selling drugs for about the last 25 years.” Speights stood silent and did

nothing to challenge or protest the assertion. While the court’s reference to the

statement in the minutes of testimony may have been improvident, we conclude

the sentencing court’s challenged statements do not “rise to the level of

affirmative showing made in cases where we have vacated and remanded based

on the sentencing court’s reliance on unproven charges.” See State v. Jose, 636

N.W.2d 38, 42 (Iowa 2001).       Rather, when we consider the statements in

context, we conclude they show only a proper consideration of Speights’s prior

proven offenses and other proper factors, rather than an improper consideration

of unproven offenses. In light of this conclusion, we conclude Speights is unable

to prove her trial counsel breached an essential duty in failing to object to the

court’s consideration of impermissible factors. See State v. Dudley, 766 N.W.2d
                                        9


606, 620 (Iowa 2009) (“[C]ounsel has no duty to raise an issue that has no

merit.”).   Speights’s ineffective-assistance claim raising this argument fails.

Anfinson, 758 N.W.2d at 499 (noting a claim of ineffective assistance of counsel

fails if either element is lacking).

IV.    Conclusion

       We affirm Speights’s conviction and preserve for a possible postconviction

relief proceeding her claim of ineffective assistance of counsel relating to her

entry of a guilty plea without being fully informed of the charge’s mandatory

minimum sentence.

       AFFIRMED.
