                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2090
                              Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER MICHAEL HAM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Madison County, Randy V. Hefner,

Judge.



      Christopher Michael Ham appeals his conviction for possession of a

controlled substance with intent to deliver. AFFIRMED.




      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

      Christopher Michael Ham appeals his conviction for possession of a

controlled substance with intent to deliver, claiming his attorney was ineffective

by not filing a motion in arrest of judgment to challenge the factual basis for the

plea. He also claims the court abused its discretion by considering an improper

sentencing factor. We affirm.

I.    Background Facts and Proceedings

      On August 19, 2015, the State charged Ham with manufacture, delivery,

or possession with intent to deliver marijuana while in the immediate possession

or control of a firearm, in violation of Iowa Code section 124.401(1)(d) and (e)

(2015), and failure to affix a drug tax stamp, in violation of sections 453B.1,

453B.3, and 453B.12. Pursuant to a plea agreement, Ham entered a guilty plea

to an amended charge of possession of marijuana with intent to deliver, without

the firearm enhancement. At the guilty plea hearing on October 26, the following

colloquy took place between Ham, prosecutor Anderson, and the district court:

              MR. HAM: Well, your Honor, on October 12th I did
      possess—oh, August 12, months I got mixed up here, I had 280
      grams of marijuana in possession at my house or my apartment
      and just going to distribute it for profit.
              THE COURT: That occurred in Madison County?
              MR. HAM: Correct, Your Honor.
              THE COURT: You knew the substance was marijuana?
              MR. HAM: Yes, Your Honor.
              THE COURT: Does that establish an adequate factual basis,
      Mr. Anderson?
              MR. ANDERSON: I think he needs to make a factual basis
      that he had a common scheme or plan with other people or another
      person.
              THE COURT: Okay.
              MR. ANDERSON: Unless we’re just doing the possession
      with intent to deliver marijuana.
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              THE COURT: I think that’s pretty clear from the factual
       basis, as I understand it, that it was in his actual possession.
              MR. ANDERSON: Right.
              THE COURT: Is that correct, Mr. Ham? You had possession
       of the marijuana?
              MR. HAM: Yeah, it was in my possession.

       The district court accepted Ham’s guilty plea.

       On November 9, the State recommended a previously agreed upon

sentence: a term of imprisonment not to exceed five years.1 Ham requested the

district court consider suspending his sentence, stating:

       Why I had handguns in my possession. I served this country, and I
       have the right to have handguns. I don’t care. I have the right to
       own a handgun. I’ve served this country, I’ve been on multiple
       tours. I feel that’s my right. I’ve earned that right.

       The district court sentenced Ham to a term of imprisonment of no more

than five years, reasoning:

               In determining what an appropriate sentence is, the law
       requires that the court consider a number of factors . . . because no
       two people are alike, one size does not fit all when it comes time for
       sentencing.
               The factors which the court is to consider include your age,
       your prior record, any prior deferred judgments, your employment
       circumstances, your family circumstances, and the nature of the
       offense. Because the goals of sentencing are, first of all, to protect
       the community from further offenses by you, and secondly, to
       impose a sentence which will provide you with the maximum
       opportunity to address whatever issues have led us to this point
       where we are sentencing you on a felony drug offense.
               ....
               The circumstances of the offense, though are very
       troublesome.       Mr. Anderson reported, Mr. Russell does not
       disagree, that you had within days of being arrested on this offense
       entered into a plea of guilty to a stalking charge. There was a no
       contact order in effect. And, correct me if I’m wrong on this, but [as
       of] the date of this arrest, the defendant was illegally in possession
       of firearms, a firearm at the very least, is that correct?

1
 In exchange for his guilty plea, the State agreed to dismiss Count II (failure to affix a
drug tax stamp) at sentencing.
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              MR. ANDERSON: He had been notified during the
      sentencing hearing on that Monday he was not to possess firearms.
      I do not know if he had received a copy of the judgment and
      sentence with that information.
              THE COURT: But he was informed at the time of
      sentencing?
              MR. ANDERSON: It was very clear to him. I believe Judge
      Relph made it very clear to him. He said he understood. That was,
      and the only reason I bring it up, because I remember it because
      we were very concerned with him having handguns with our victim
      in that case.
                    ....
              THE COURT: Whether the defendant was illegally in
      possession of firearms, it is bothersome that he was running a drug
      operation—and I’ve read the minutes of testimony, and I’m relying
      upon the facts as recited in the minutes of testimony—while in
      possession of at least one firearm. That is a seriously aggravating
      circumstance.

II.   Scope and Standards of Review

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

Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).

      Our review for challenges to sentences is for correction of errors at law.

State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003). “[T]he decision of the district

court to impose a particular sentence within the statutory limits is cloaked with a

strong presumption in its favor, and will only be overturned for an abuse of

discretion or the consideration of inappropriate matters.” State v. Formaro, 638

N.W.2d 720, 724 (Iowa 2002). An abuse of discretion occurs when the court’s

sentencing decision was “exercised on grounds or for reasons that were clearly

untenable or unreasonable.” State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008).
                                         5


III.   Merits

       A. Ineffective Assistance

       Ham claims his attorney was ineffective for not filing a motion in arrest of

judgment challenging the lack of factual basis for his guilty plea.            “If an

ineffective-assistance-of-counsel claim is raised on direct appeal from the

criminal proceedings, we may decide the record is adequate to decide the claim

or may choose to preserve the claim for postconviction proceedings.” State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). Upon our review of the record, we find

the record adequate to address Ham’s ineffective-assistance-of-counsel claims.

See id. An ineffective-assistance-of-counsel claim requires Ham to demonstrate:

(1) the trial counsel failed to perform an essential duty and (2) prejudice resulted

from the counsel’s error. See id. (citing Strickland v. Washington, 466 U.S. 668,

687–88 (1984)).

       “Defense counsel violates an essential duty when counsel permits

defendant to plead guilty and waive his right to file a motion in arrest of judgment

when there is no factual basis to support defendant’s guilty plea. Prejudice is

presumed under these circumstances.” Ortiz, 789 N.W.2d at 764. A factual

basis for a guilty plea may be found from: “(1) inquiry of the defendant, (2) inquiry

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

evidence.” State v. Johnson, 234 N.W.2d 878, 879 (Iowa 1975).

       Iowa Code section 124.401(1) provides:

              Except as authorized by this chapter, it is unlawful for any
       person to manufacture, deliver, or possess with the intent to
       manufacture or deliver, a controlled substance, a counterfeit
       substance, or a simulated controlled substance, or to act with, enter
       into a common scheme or design with, or conspire with one or
                                          6


       more persons to manufacture, deliver, or possess with the intent to
       manufacture or deliver a controlled substance, a counterfeit
       substance, or a simulated controlled substance.

       Ham claims the statement he “had 280 grams of marijuana in possession

at [his] house or [his] apartment and just going to distribute it for profit” does not

mean he was going to distribute or attempt to distribute it from himself to others

within the meaning of Iowa Code section 124.401(1).

       Intent is seldom susceptible to proof by direct evidence. State v. Sinclair,

622 N.W.2d 772, 780 (Iowa Ct. App. 2000). Proving intent usually depends on

circumstantial evidence and the inferences a fact-finder may draw from the

evidence. Id. “[T]he facts and circumstances surrounding the act, as well as any

reasonable inferences to be drawn from those facts and circumstances, may be

relied upon to ascertain the defendant’s intent.” State v. Schminkey, 597 N.W.2d

785, 789 (Iowa 1999).

       Upon review, we find a factual basis for Ham’s guilty plea. It is evident

from both the evidence found during Ham’s arrest and his statements he

intended to distribute marijuana.     Ham’s attorney did not breach his duty by

allowing Ham to plead guilty. We affirm the decision of the district court.

       B.     Sentencing

       Ham claims the district court abused its discretion by considering an

improper factor during sentencing: his illegal possession of a firearm when he

was only charged with possession with intent to deliver. “A district court may not

consider an unproven or unprosecuted offense when sentencing a defendant

unless (1) the facts before the court show the defendant committed the offense,

or (2) the defendant admits it.” State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001)
                                        7


(citation omitted).   “Sentencing decisions of the trial court are cloaked with a

strong presumption in their favor, and an abuse will not be found unless the

defendant shows that such discretion was exercised on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.”      State v. Loyd, 530

N.W.2d 708, 713 (Iowa 1995). When determining the appropriate sentence, the

court should “weigh and consider all pertinent matters in determining [a] proper

sentence, including the nature of the offense, the attending circumstances,

defendant’s age, character and propensities and chances of his reform.” State v.

Leckington, 713 N.W.2d 208, 216 (Iowa 2006). The reviewing court does not

decide the sentence it would have imposed but whether the sentence imposed

was reasonable. Formaro, 638 N.W.2d at 755.

       Ham claims the district court incorrectly considered his unproven or

unprosecuted criminal activity. At the sentence hearing, Ham admitted to owning

at least one firearm stating, “Why I had handguns in my possession. I served

this country, and I have the right to have handguns.”         Because of Ham’s

admission at the time of sentencing, the district court could properly consider his

possession of a firearm when imposing sentence as a circumstance surrounding

the charge of possession with intent to deliver. See Jose, 636 N.W.2d at 41.

       We find the district court did not abuse its discretion by considering

impermissible factors when sentencing Ham.

       AFFIRMED.
