                       IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0886
                              Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONTRELL MARQUA NEAL,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



       A defendant challenges his convictions and sentences for robbery in the

first degree and possession of a firearm as a felon. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ. Blane,

S.J., takes no part.
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TABOR, Judge.

          Dontrell Neal appeals his judgment and sentence entered upon a jury

verdict finding him guilty of robbery in the first degree and felon in possession of

a firearm. First, Neal argues his trial counsel was ineffective for failing to move to

suppress the show-up identification as a due process violation under the Iowa

Constitution. Second, Neal argues the district court abused its discretion when it

imposed consecutive sentences. Because Neal has shown neither prejudice by

the failure to move to suppress nor an abuse of discretion in sentencing, we

affirm.

I.        Background Facts and Proceedings

          In the early morning hours of February 10, 2014, an armed man entered a

Kum & Go gas station on the eastside of Des Moines. The man trained his

handgun on the store clerk, Victor Moody, and demanded money from the

registers. Moody complied, putting the cash inside a brown paper bag. After the

man left the store, Moody immediately called the police to report the robbery,

describing the perpetrator as wearing a black-hooded sweatshirt, black jeans,

and a scarf over his mouth.

          Des Moines Police Officer Brian Buck, who was on patrol nearby, headed

toward the store.     But as the officer approached, he noticed a green Yukon

travelling away from Kum & Go. Although he was unable to see the driver, the

vehicle caught Officer Buck’s attention because of its proximity to the Kum & Go

and the circuitous route it was taking to travel east. Officer Buck followed the

Yukon for about four blocks before initiating a traffic stop.       As Officer Buck

activated his lights, the Yukon accelerated into a driveway, striking two parked
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cars before coming to a stop. The driver jumped out of the vehicle and ran.

Believing the driver’s clothing matched the description provided by Moody,

Officer Buck pursued on foot.

       When Officer Buck lost sight of the driver in a residential neighborhood, he

decided to wait for the arrival of reinforcements, including a K-9 unit. The officers

then tracked the path of the driver through the snow and located a paper bag

filled with money on the ground behind the address where Officer Buck initially

gave up his foot chase. Shortly thereafter, another officer located the driver a

few blocks away and identified him as Dontrell Neal.         After taking Neal into

custody, the officers returned to the area of the foot chase. They followed the

footprints in the snow from the driveway where Neal left his Yukon to the

backyard of the same residence and found a loaded handgun partially buried in

the snow next to the footprints.     Inside Neal’s vehicle, officers found a gray

stocking cap and black t-shirt.

       Within approximately one-half hour of the robbery report, officers picked

up Moody from the convenience store and brought him to the neighborhood

where they had apprehended Neal.         The officers directed their lights on the

suspect and asked Moody if Neal was the person who had robbed the store.

While unable to make a positive identification based on the suspect’s face,

Moody identified Neal as the robber based on his clothing.

       On March 20, 2014, the State charged Neal with first-degree robbery, a

class “B” felony, in violation of Iowa Code section 711.1(1)(a) and (b) (2013) and

felon in possession of a firearm, a class “D” felony, in violation of section

724.26(1). Following trial, the jury found Neal guilty on both counts. On May 19,
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2015, the sentencing hearing took place.          The court imposed consecutive

sentences “for maximum protection of the public due to nature of the offense and

defendant’s prior criminal record.” The court further noted it would not impose

probation on the felon-in-possession conviction because “probation would not

provide maximum opportunity for rehabilitation of the defendant and protection of

the public from further offenses.”

       That same day, Neal filed a notice of appeal. He seeks relief on two

grounds: (1) trial counsel provided ineffective assistance by failing to file a motion

to suppress the show-up identification, which violated his due process rights

under article I, section 9 of the Iowa Constitution; and (2) the court abused its

discretion in imposing consecutive terms of imprisonment.

II.    Ineffective Assistance of Counsel

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

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Generally, we prefer to preserve

ineffective-assistance claims for postconviction-relief proceedings.       But if the

record is sufficient, we may resolve such claims on direct appeal.           State v.

Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We find the record is sufficient in

this case.

       To prove his claim of ineffective assistance of counsel, Neal must show:

(1) his counsel failed to perform an essential duty; and (2) this failure resulted in

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.

Halverson, 857 N.W.2d 632, 635 (Iowa 2015). Neal must prove both of these

elements by a preponderance of the evidence to prevail; we may affirm on

appeal if either element is lacking. See Strickland, 466 U.S. at 687.
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       Neal argues his counsel failed to perform an essential duty when she did

not move to exclude the pre-trial show-up identification on state due process

grounds. Iowa courts have adopted the federal “reliability” standard to determine

the admissibility of an out-of-court identification. State v. Folkerts, 703 N.W.2d

761, 763–64 (Iowa 2005); State v. Webb, 516 N.W.2d 824, 829–30 (Iowa 1994).

Under this standard, the court must determine: (1) if the out-of-court identification

procedure was impermissibly suggestive; and (2) if so, whether the procedure

gave rise to “a very substantial likelihood of irreparable misidentification” under

the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 116 (1977)

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). While conceding

that Iowa courts have embraced the federal approach, Neal lobbies for a move to

the “necessity” standard followed in Wisconsin in light of continuing scientific

research on the reliability of eyewitness identification and the Iowa Constitution’s

significant protections of individual rights.1 Under the “necessity” standard, out-

of-court show-up identifications are “inherently suggestive” and inadmissible

unless the show-up-identification procedure was necessary under the totality of

the circumstances. State v. Dubose, 699 N.W.2d 582, 593–94 (Wis. 2005).

       But we need not address the issue of trial counsel’s failure to perform an

essential duty because Neal has not shown he was prejudiced by the alleged

breach.2 To prove prejudice, Neal must demonstrate a reasonable probability


1
   The routing statement in the appellant’s brief asks for our supreme court to retain this
appeal because it involves a substantial issue of first impression in Iowa, but the
supreme court transferred the case to us.
2
   The State directs us to State v. Williams to resolve this claim. No. 10-1254, 2011 WL
5394366 (Iowa Ct. App. Nov. 9, 2011). After his conviction for robbery in the first
degree, Williams appealed on the grounds his trial counsel was ineffective for failing to
file a motion to suppress the show-up identification used in his case. Id. at *1. Like
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that, “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Halverson, 857 N.W.2d at 639 (quoting Strickland, 466

U.S. at 694). In making this determination, we consider the evidence as a whole

as well as the extent of the effect of counsel’s purported error on the overall trial.

State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 2003).

       To analyze the prejudice prong, we turn to the evidence considered by the

jury in this matter. The jury had the opportunity to view the surveillance video

from Kum & Go and compare the images of the robber with photographs of the

clothing Neal wore that night.       In addition, the surveillance video shows the

robber was wearing a gray stocking cap and a dark article of clothing covering

his face. The jury could have determined the items found in Neal’s vehicle—a

gray stocking cap and black t-shirt—matched the items shown on the

surveillance video.    Further, Officer Buck first observed Neal’s vehicle in the

general proximity of the Kum & Go only a short time after the 911 call. When

Officer Buck signaled the vehicle to pull over, Neal ran. Law enforcement found

a paper bag of money near the area where the officer first lost sight of Neal and

also found a handgun near the area where the foot chase began. Both items

were consistent with the surveillance footage and the descriptions provided by

Neal, Williams argued for the adoption of Wisconsin’s rule regarding show-up
identification procedures. See id. at *3. This court declined to reach the issue of
whether Iowa should adopt Wisconsin’s standard and instead resolved the matter on
prejudice grounds. Id. We noted other evidence presented at trial undermined
Williams’s prejudice claim, such as video surveillance independently showing the robber
wearing clothing matching Williams’s clothing, Williams ignoring the police when ordered
to stop, the discovery of a knife in the snow bank where Williams had fallen similar to the
knife observed by the victim, and the discovery Williams’s pockets contained an amount
of change consistent with the amount the victim had reported stolen. Id. at *4.
         Indeed, the factual similarities between these matters are numerous—particularly
the evidence independent of the show-up identification demonstrating the strength of the
State’s case. Accordingly, we resolve Neal’s claim as we resolved Williams’s claim.
                                         7


Moody. Compared to the strong circumstantial evidence of Neal’s participation in

the armed robbery, Moody’s identification of Neal’s clothing during the show-up

procedure was of little consequence.

       Finally, the jury heard recordings of phone conversations Neal had from

the jail after his arrest. During the first call, Neal tells a woman that he had been

charged with first-degree robbery and felon in possession of a firearm. When

she asks if the police found him with his gun, Neal replies: “No, they didn’t catch

me with it.” In another call, in response to a woman caller’s reference to their

need for money, Neal says: “They got the money too.” He continues: “I tried.”

The woman states: “It would have been better if you would have just came

home.”    And Neal responds: “Then we would have just been in the same

situation.” She continues: “No, we would have called fucking Lori and got the

money or something.”        A reasonable jury could have determined Neal’s

statement, “I tried,” referred to his attempt to obtain money by robbing the Kum &

Go and his statement, “They didn’t catch me with it,” meant Neal did, in fact,

have a firearm. Neal’s incriminating statements following his arrest added to the

overall strength of the State’s case.

       Given the ample evidence of Neal’s guilt presented at trial, even if Neal’s

counsel failed to perform an essential duty by not moving to suppress the show-

up identification, we find Neal failed to show prejudice sufficient to undermine our

confidence in the outcome of his case. Therefore, we affirm Neal’s convictions.

III.   Consecutive Sentences

       We review a district court’s sentencing decision for an abuse of discretion.

State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). The sentencing court must
                                         8


“state on the record its reason for selecting the particular sentence.” Iowa R.

Crim. P. 2.23(3)(d).    A district court abuses its discretion when it makes a

sentencing decision “on grounds clearly untenable or to an extent clearly

unreasonable” or when it fails to state reasons sufficient to provide appellate

review of the sentencing court’s discretion. Hill, 878 N.W.2d at 272–73. But

even a “terse and succinct” statement may be sufficient “so long as the brevity of

the court’s statement does not prevent review.” State v. Johnson, 445 N.W.2d

337, 343 (Iowa 1989).

      Neal argues the district court abused its discretion in imposing

consecutive sentences because: (1) the court did not conclude the offense of

felon in possession of a firearm was separate from the robbery conviction; and

(2) the court’s rationale for imposing a term of imprisonment on that charge was

insufficient because the rationale given was already served by the mandatory-

minimum prison term for the robbery conviction.

      First, the court did not abuse its discretion by failing to explicitly find the

felon-in-possession-of-a-firearm   offense   was    separate   from    the   robbery

conviction. Iowa Code section 901.8 states: “If a person is sentenced for two or

more separate offenses, the sentencing judge may order the second or further

sentence to begin at the expiration of the first or succeeding sentence.” As long

as the convictions are for “separate offenses,” the sentencing court has the

discretion to impose consecutive sentences on more than one conviction arising

out of the same transaction. State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999);

State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976); State v. Fields, No. 13-1200,

2014 WL 3511841, at *2 (Iowa Ct. App. July 16, 2014) (finding district court did
                                           9


not abuse its discretion in imposing consecutive sentences for robbery and willful

injury arising out of a single transaction). At the sentencing hearing and in the

sentencing order, the district court referred to section 901.8 as the authority for

imposing consecutive sentences, implicitly recognizing the two offenses, though

arising from the same transaction, were separate.3

       Second, the court did not abuse its discretion by using a similar rationale

for imposing consecutive sentences as was served by the legislatively mandated

minimum term of incarceration. Cf. Hill, 878 N.W.2d at 275 (“Sentencing courts

should . . . explicitly state the reasons for imposing a consecutive sentence,

although in doing so the court may rely on the same reasons for imposing a

sentence of incarceration.”).      At Neal’s sentencing, the court provided the

following reasons for imposing consecutive sentences: “Pursuant to 901.5(9)(c)

and 901.8, the sentences of incarceration shall be served consecutively. The

court has determined that this is for maximum protection of the public and due to

the nature of the offense and defendant’s prior criminal record.”4

       The court understood it had discretion to choose between concurrent or

consecutive sentences.         In deciding consecutive sentences were more

appropriate, the court focused on the nature of the offense—an armed robbery

where Neal aimed his gun at the store clerk’s face while demanding cash. The

court also cited Neal’s prior criminal record, which stretched back to 2001 and


3
  Neal does not raise a double jeopardy issue or argue his convictions should merge
under section 701.9
4
  In the “sentencing considerations” section, the sentencing order states: “The court
determines that the sentence set forth herein will provide maximum opportunity for
rehabilitation of defendant and protection of the community from further offenses.
Pursuant to Iowa Code section 907.5, the court has considered the following factors: the
nature of the offense committed; statutory sentencing requirements.”
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included convictions for assault causing bodily injury, interference with official

acts, theft, eluding, escape, harassment, and driving under suspension.

      On appeal, Neal argues his criminal background involved “almost

exclusively misdemeanors and his single felony conviction occurred twelve years

before the current offense.” He contends under these circumstances, the

sentencing court abused its discretion in imposing a thirty-year sentence. Neal

further notes his robbery sentence already carried a mandatory-minimum term of

seventeen and one-half years before he is eligible for parole and urges that

length of incarceration would satisfy the court’s concerns about public protection.

      On appeal, it is not our job to contemplate what sentence we would have

imposed on Neal; instead, we review whether the district court’s sentence was

reasonable. See State v. Hopkins, 860 N.W.2d 550, 554 (Iowa 2015) (citing

State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002), for the proposition the

“inherent latitude” in sentencing process properly limits our review).      It was

reasonable for the district court to consider Neal’s persistent recidivism and the

dangerousness of a felon using a firearm to commit a robbery when opting to

boxcar his sentences.     We find no abuse of discretion in the imposition of

consecutive terms.

      AFFIRMED.
