                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0169
                            Filed November 12, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS C. MIGLIO,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates

(plea) and Annette J. Scieszinski (sentencing), Judges.



      A defendant who pleaded guilty to a drug felony appeals the district court’s

denial of his request for a deferred judgment.     SENTENCE VACATED AND

REMANDED FOR RESENTENCING.



      Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn, Boles,

Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall,

Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                        2



TABOR, Judge.

       Nicholas Miglio contends the sentencing court abused its discretion in

denying his request for a deferred judgment. Miglio also argues his counsel was

ineffective by not objecting to misinformation in the presentence investigation

(PSI) report that he failed to follow through with recommendations required by

Iowa Code section 811.2(1)(b) (2013). Because we agree counsel’s omission

allowed the sentencing court to rely on a faulty finding in the PSI report, we

remand for resentencing. We do not address the question whether the court

abused its discretion.

I.     Background Facts and Proceedings

       When he was arrested for possessing marijuana with intent to deliver

during a traffic stop on Interstate 80, Nicholas Miglio was nineteen years old and

in his second year at St. Ambrose University in Davenport. He had a double

major in finance and philosophy and a minor in economics. Miglio grew up in

Chicago and returned to his family’s home during breaks from college. After his

April 22, 2014 arrest, Miglio was released on his own recognizance without bond

or court services.

       The State charged Miglio in a three-count trial information with (1) failure

to affix a drug tax stamp, a class “D” felony in violation of Iowa Code sections

453B.1, 453B.3, and 453B.12; (2) possession with intent to deliver marijuana, a

class “D” felony, in violation of section 124.401(1)(d); and (3) unlawfully keeping

a premises for drugs, an aggravated misdemeanor in violation of section

124.402(1)(e).   On September 15, 2014, Miglio pleaded guilty to count two,
                                        3



possession with intent to deliver marijuana. Miglio admitted at the plea hearing

that he possessed less than fifty kilograms of marijuana and intended to “not sell,

but share it” with someone else. As part of the plea agreement, Miglio could

request a deferred judgment and the State would take no position at sentencing. 1

      Before sentencing, Miglio met with the PSI author, who recorded the

following comment under his Arrest History:

               [T]he defendant reported during the presentence interview
      conducted on December 1, 2014, that he had no prior criminal
      record including deferred judgments and that he had never been
      placed on adult probation or parole; however an NCIC Criminal
      Records Response reflects that he received a prior deferred on
      December 19, 2013 and that he was placed on Court supervised
      probation for six months and was on probation to Warren County,
      Illinois Court Services when he was charged with the instant and
      pending offense. Information received from the Warren County
      State’s Attorney’s Office reports that they did not file a probation
      violation complaint against the defendant because they were not
      aware of the new offense. They report that he has paid the fine in
      full and that the probation has expired in June of 2014.

The PSI report listed his prior Illinois misdemeanor offense as possession of

cannabis on November 16, 2013. The disposition was to withhold judgment with

six months supervision and a fine of $815.

      Also in the PSI report, under Offender Intervention Comments, the

following information appeared:

            The defendant reportedly obtained a substance abuse
      evaluation following his release in this matter while on break from
      school in Chicago, Illinois . . . . Information received from the
      defendant’s mother indicates that the evaluation was conducted by
      Presence Behavioral Health. [The PSI attached a copy of the
      evaluation results.]



1
 Miglio was eligible for a deferred judgment under Iowa Code sections 901.5(1) and
907.3.
                                       4



             It should be noted that the licensed addiction counselor
       recommended that Mr. Miglio “have random drug screens and
       attend counseling when he returns to school”; however the
       defendant failed to follow through with the recommendation even
       though it is required as a condition of his release pursuant to
       Section 811.2(1)(b) of the Code of Iowa.

The PSI author further shared a report from Miglio’s mother explaining it was

difficult for Miglio to follow up with the recommended treatment in Davenport

because he did not have a vehicle at college, but that he did see a clinical

psychologist when he returned home to Chicago. The PSI author responded by

noting the availability of substance abuse treatment within walking distance from

Miglio’s residence in Davenport. The author also wrote that the psychologist in

Chicago did not appear from his website “to provide any form of substance abuse

services.”

       In making his sentencing recommendation, the PSI author again repeated

that Miglio was “statutorily required” to follow through with the recommendations

for random drug screens and counseling. The PSI author stated:

       Mr. Miglio claims that he did not follow through with the
       recommended treatment because he felt that the drug program had
       a “cookie cutter” feel and “lacked a sense of specificity” to his
       personal needs. Mr. Miglio further expressed that he sees a
       licensed clinical psychologist for treatment of ADD and ADHD and
       he felt that his appointments with Dr. Gordon allow him the feeling
       of “individuality.” While it is encouraging that the defendant
       continues to see his psychologist; it should not take the place of
       receiving substance abuse treatment through a certified addictions
       counselor while maintain the credibility of treatment through
       random drug screening.

       The PSI report ultimately recommended Miglio    receive    a   suspended

sentence and be placed on probation.
                                         5



       Miglio appeared for sentencing on January 12, 2015.            At the hearing,

defense counsel pointed to several incorrect statements in the PSI. Specifically,

counsel noted the drug treatment provider was not within walking distance from

Miglio’s residence, but “that he does have a scheduled appointment for an

evaluation with the same organization” at a different facility. Counsel also noted

Dr. Gordon was not treating Miglio for ADD and ADHD; “his primary care

physician treats him for those two conditions.” Counsel offered as an exhibit a

letter from Dr. Gordon, discussing his treatment of Miglio for “intense anxiety”

and Miglio’s past practice of using marijuana to “self-medicate.”        Dr. Gordon

further stated in the letter that Miglio was “absolutely committed to a program of

sobriety.” The defense also offered exhibits showing two negative drug screens

conducted on November 26, 2014, and January 8, 2015, at a Chicago-area

testing center.

       Defense counsel did not object to statements in the PSI report that Miglio

violated his pretrial-release conditions under section 811.2(1)(b).

       Defense counsel told the sentencing court, on the issue of his Illinois

possession-of-marijuana offense, that Miglio appeared in court without counsel,

did not know he was on probation, and did not know “what a deferred judgment

meant.”

       Defense counsel asked for a deferred judgment for Miglio.             Counsel

stated: “I think it’s taken him some time to understand that he just simply can’t

use marijuana. And I think he understands that now.” Counsel noted his client’s
                                        6



double major at St. Ambrose and expressed that “a felony conviction would pretty

much derail any plans that he has subsequent to his college education.”

      The sentencing court told the parties it had “carefully read the presentence

investigation report” and asked Miglio about his “decision not to seek the

treatment that was recommended” after his substance-abuse evaluation. Miglio

responded that he did seek further counseling, though not with a licensed drug

abuse counselor and was participating in drug screens.

      In rejecting Miglio’s request for a deferred judgment, the court stated:

      [I]t’s a surprise in this case to see that you really didn’t take
      ownership in this case. And there are a number of instances
      outlined in the presentence report that indicate that you really
      believe that you know things better than the folks that are making
      the requirements. I think you even indicated here on the record
      today that you didn’t get the follow up to the substance evaluation
      because you believed that something different was the way to go.

      The court continued:

             It’s crucial that a person seeking to defer conviction takes
      ownership for what they’ve done, they take ownership for the
      conditions and the problems they need to wrestle with to become
      rehabilitated, and that they are honest with the Correctional
      Services people, you know there an issue about that in this case.

The court entered judgment on Miglio’s felony conviction, suspended his

indeterminate five-year sentence, and placed him on probation for five years.

Miglio challenges that judgment and sentence on appeal.

II.   Scope and Standards of Review

      We review de novo Miglio’s claim that he received ineffective assistance

of counsel at the sentencing hearing. Id. We will resolve such claims on direct

appeal where the record is adequate to do so. See State v. Clay, 824 N.W.2d
                                         7



488, 494 (Iowa 2012). To prevail on his claim of ineffective assistance, Miglio

must show counsel failed to perform an essential duty and prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687 (1984).           In deciding whether

counsel failed to perform an essential duty, we measure counsel’s performance

“objectively by determining whether [it] was reasonable, under prevailing

professional norms, considering all the circumstances.”      State v. Lyman, 776

N.W.2d 865, 878 (Iowa 2010). In deciding whether the breach of duty resulted in

prejudice, we looks to see if the defendant can show by a reasonable probability

that, but for the counsel’s unprofessional error, the result of the sentencing

proceeding would have been different. State v. Hopkins, 860 N.W.2d 550, 557

(Iowa 2015).

III.   Analysis

       Miglio contends counsel was ineffective in failing to specifically object to

the PSI’s “false finding” that Miglio violated conditions of his pretrial release

under section 811.2(1)(b).

       In sentencing a defendant, the district court must receive and examine “all

pertinent information, including the presentence investigation report” in deciding

on the sentencing option that will “provide maximum opportunity for the

rehabilitation of the defendant, and for the protection of the community from

further offenses by the defendant and others.” Iowa Code § 901.5. The PSI

report’s primary function is to provide pertinent information to assist the district

court in reaching a sentencing decision. State v. Grandberry, 619 N.W.2d 399,

402 (Iowa 2000). When the district court orders a PSI report, the investigator is
                                        8



required to include the defendant’s characteristics, family and financial

circumstances, needs, and potentialities, criminal record, social history,

circumstances of the offense, the harm to the victim and community, and

mitigating circumstances. Iowa Code § 901.3. “The PSI report not only includes

relevant information concerning sentencing, but a sentencing recommendation.”

Hopkins, 860 N.W.2d at 556–57. Although the court is not bound to follow the

sentencing recommendation reached by an officer of the department of

correctional services, the PSI report’s recommendation is a factor that could

influence the sentencing decision. Id. at 557.

      In choosing an appropriate sentence, the district court is free to consider

portions of a PSI not challenged by the defendant. See State v. Witham, 583

N.W.2d 677, 678 (Iowa 1998). Where the record shows the district court knew of

inaccuracies in the PSI report and did not rely on them, appellate courts have

found no basis for vacating the sentence. See, e.g., State v. Swartz, 601 N.W.2d

348, 354 (Iowa 1999); State v. Peters, 525 N.W.2d 854, 860 (Iowa 1994). As

discussed below, nothing in the record suggests the court sentencing Miglio was

aware of the PSI report’s inaccuracy regarding section 811.2(1)(b).

      In this case, defense counsel challenged portions of the PSI report, but did

not object to repeated allegations in the report that Miglio violated conditions of

his pretrial release under Iowa Code section 811.2(1)(b), which provides:

      Any bailable defendant who is charged with unlawful possession,
      manufacture, delivery, or distribution of a controlled substance or
      other drug under chapter 124 and is ordered released shall be
      required, as a condition of that release, to submit to a substance
      abuse evaluation and follow any recommendations proposed in the
      evaluation for appropriate substance abuse treatment.
                                            9




       The State concedes on appeal that when Miglio was released April 22 on

his own recognizance, he was not ordered to comply with section 811.2(1)(b),

and instead he voluntarily obtained a substance abuse evaluation.2 See Iowa

Code § 804.21(4).       Miglio completed that voluntary assessment on May 28,

2014, with clinician John Houlihan at Presence Health in Chicago. Houlihan’s

report—which was an attachment to the PSI—noted Miglio “completed an 8 hour

course of education and brief counseling and did well; showing a good grasp of

the principles of addiction and negative consequences of drug and alcohol use.”

Houlihan recommended Miglio have “random urine drug screens and attend

counseling when he returns to school.” The PSI report stated Miglio “failed to

follow through with this recommendation even though it is required as a condition

of his release pursuant to Section 811.2(1)(b) of the Iowa Code.” The PSI report

repeated the allegation of a statutory violation in its sentencing recommendation.

       Given the circumstances of Miglio’s release and the State’s concession he

was not informed that a substance-abuse evaluation was a condition of his

release, we find counsel breached an essential duty by not challenging the PSI

report’s references to section 811.2(1)(b).         The State argues it was “highly

relevant” to the sentencing court’s decision that Miglio elected to see his

psychologist in Chicago rather than follow Houlihan’s recommendation that he

attend drug counseling at college. While it may be relevant that a defendant



2
  We do not suggest that it was proper to release Miglio without the condition that he
submit to a substance-abuse evaluation under section 811.2(1)(b), but rather we find
that it is necessary to inform a defendant of the conditions of release if penalties are to
be applied to a violation of the condition. See Iowa Code § 811.2(5).
                                        10



does not follow the recommendations from a voluntary assessment, in this case

the sentencing court was wrongly informed by the PSI report that Miglio violated

conditions of his release by not following the recommendations of a “statutorily

required” evaluation.

      We next turn to the question of prejudice. Generally, in sentencing cases,

we are reluctant to speculate about the weight that a trial court “mentally

assigned” to an impermissible factor, or whether it tipped the scales toward a

harsher sentence.       See State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981)

(remanding for resentencing without consideration of improper factors).         We

know in this case, after reviewing the PSI report, the sentencing court observed

that Miglio had not taken “ownership” of his case and further noted “a number of

instances outlined in the presentence report that indicate that you really believe

that you know things better than the folks that are making the requirements.”

The court’s reference to “requirements” rather than to “recommendations” signals

it was relying on an improper factor, i.e., the PSI report’s finding Miglio violated

the conditions of his release under section 811.2(1)(b).

      If defense counsel had lodged an objection to the inaccurate statements in

the PSI report indicating Miglio had violated pretrial-release conditions, a

reasonable probability exists the district court would have more seriously

considered granting his request for a deferred judgment. The prejudice from

counsel’s omission reflects in the court’s reasoning that it was “crucial that a

person seeking to defer conviction takes ownership for what they’ve done” and

“ownership for the conditions and the problems they need to wrestle with to
                                       11



become rehabilitated.”    It is much more likely the court would have believed

Miglio was taking responsibility for his drug offense if the PSI report had been

clarified to show Miglio had voluntarily sought out the substance-abuse

assessment, even if he did not strictly follow the clinician’s recommendations for

follow-up treatment.     We conclude Miglio was prejudiced by his counsel’s

omission.

         Having determined trial counsel provided ineffective assistance at

sentencing, we vacate the judgment and sentence. We decline Miglio’s invitation

to grant a deferred judgment on appeal and instead remand for resentencing

where that option is available to the sentencing court. On remand, we direct the

PSI report be updated to remedy the issues addressed in this decision. See

State v. Polk, No. 04-0570, 2005 WL 2805550, at *2 n.2 (Iowa Ct. App. Aug. 31,

2005).

         SENTENCE VACATED AND REMANDED FOR RESENTENCING.
