                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0722
                             Filed November 12, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

COREY ALAN WICKERSHAM,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Scott County, Stuart P. Werling

(plea) and Nancy S. Tabor (sentencing), Judges.



       The defendant appeals his conviction and sentence after pleading guilty to

possession of marijuana with intent to deliver. AFFIRMED.



       Jack E. Dusthimer, Davenport, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik and Linda J. Hines,

Assistant Attorneys General, Michael J. Walton, County Attorney, and Kelly

Cunningham, Assistant County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., Potterfield, J., and Sackett, S.J.*

Tabor, J., takes no part.

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SACKETT, Senior Judge.

       Corey Wickersham appeals his conviction and sentence after pleading

guilty to possession of marijuana with intent to deliver. He contends his trial

counsel was ineffective in failing to obtain a ruling on his motion to dismiss for

violation of his right to a speedy trial. He also contends the trial court abused its

discretion in sentencing him to a prison term.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       On August 13, 2012, law enforcement officers who stopped Wickersham’s

vehicle for a traffic violation smelled the odor of fresh marijuana. A search of his

vehicle yielded the discovery of approximately two pounds of marijuana under

the front passenger seat of the vehicle. Wickersham was transported to the

police department for an interview where he was read his Miranda warnings, but

was told he was only being detained while an investigation was pending and was

not under arrest.     Wickersham was released after agreeing to assist law

enforcement in an investigation. To that end, he participated in a controlled buy

of marijuana on August 18, 2013.

       On November 27, 2013, the State charged Wickersham with ongoing

criminal conduct, possession of marijuana with intent to deliver, a drug tax stamp

violation, and conspiracy to commit a non-forcible felony. Wickersham moved to

dismiss the charges against him, arguing the speedy trial deadline had passed

because he was arrested on August 13, 2012. Before the court ruled on the

motion, Wickersham entered a plea agreement with the State wherein he agreed

to plead guilty to possession with intent to deliver marijuana in exchange for
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dismissal of the other charges. The district court accepted Wickersham’s guilty

plea and sentenced him to a term of imprisonment of not more than five years.

II.    INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

       Wickersham first contends his trial counsel was ineffective in allowing him

to plead guilty before the court ruled on his motion to dismiss. He argues that in

order for his guilty plea to be knowing and intelligent, the court should ensure the

accused is fully informed that any pending motions will be moot upon entry of a

guilty plea. Because he asserts there was a basis for dismissal of the charges

on speedy trial grounds, he claims the failure to make him aware he was waiving

his speedy-trial challenge by pleading guilty invalidates his waiver of rights.

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

Finney, 834 N.W.2d 46, 49 (Iowa 2013). Although such claims are normally

preserved for postconviction-relief actions, we will address them on direct appeal

if the record is sufficient to permit a determination of the merits of the claim. Id.

In order to succeed, Wickersham must show counsel failed to perform an

essential duty and he was prejudiced by this failure. See Rhoades v. State, 848

N.W.2d 22, 28 (Iowa 2014). To establish prejudice here, Wickersham must show

that he would not have pled guilty but for counsel’s breach of duty. Castro v.

State, 795 N.W.2d 789, 792 (Iowa 2011). If prejudice is not shown, we need not

address the question of whether counsel failed to perform an essential duty.

State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).

       Wickersham cannot show he was prejudiced by counsel’s failure to first

obtain a ruling on his motion to dismiss before allowing him to plead guilty. His
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motion to dismiss relied on the premise that he was arrested on August 13, 2013,

more than forty-five days before the State filed charges. See Iowa R. Crim. P.

2.33(2)(a) (requiring the State to indict a defendant within forty-five days of arrest

or the prosecution be dismissed unless good cause is shown or the defendant

waives the right to a speedy indictment). Although Wickersham was stopped on

this date, the evidence shows he was not arrested. Wickersham was stopped for

a traffic violation and transported to the police department, where he was told he

was being detained for investigatory purposes and was not under arrest. During

the interview, Wickersham was given the option to be arrested or cooperate with

the investigation.    Wickersham opted to assist law enforcement and was

released.   When law enforcement provides the accused with a choice to

cooperate, it “precludes the possibility of there being an ‘arrest.’”        State v.

Johncon-Hugi, 484 N.W.2d 599, 601 (Iowa 1992). Because the evidence shows

Wickersham was not placed under arrest on August 13, 2013, he cannot show

his right to a speedy trial was violated or that his motion to dismiss would have

been granted.

III.   SENTENCING CLAIM.

       Wickersham also challenges his sentence, arguing he should have been

given probation as recommended in the presentence investigation report rather

than a term of incarceration. Because his sentence is within the statutory limits,

our review is for an abuse of discretion. State v. Seats, 865 N.W.2d 545, 552

(Iowa 2015).    There is a strong presumption in favor of the district court’s

sentencing decisions, and we will only find an abuse of discretion where the court
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acts on grounds clearly untenable or to an extent clearly unreasonable. State v.

Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).            In order to overcome the

presumption of validity, our supreme court has required an affirmative showing

the sentencing court relied on improper evidence. Id.

      In imposing a sentence, the court is to consider the nature of the offense,

the attending circumstances, and the defendant’s age, character, and

propensities and chances of reform. Id. at 554. Iowa Code section 907.5 (2013)

further requires the court consider the defendant’s prior records of convictions

and deferments of judgment, employment circumstances, family circumstances,

mental health and substance abuse history and treatment options available in the

community and the correctional system, and “other factors as are appropriate.”

      In sentencing Wickersham to incarceration, the sentencing court noted

Wickersham was thirty-three-years old and “had lots of opportunities to learn to

get out of [his] juvenile thinking.”    The court noted Wickersham had the

opportunity to get the substance abuse treatment he needed on three separate

occasions over the years but failed to follow through. Finally, the court noted the

seriousness of the crime, stating this was not a crime involving “a couple

marijuana blunts or marijuana cigarettes” being passed around a party. Rather,

Wickersham was in possession of two pounds of marijuana, which he planned to

sell for money.

      Wickersham argues the court “did not indicate, or otherwise show [it]

understand the timeline involved” because it failed to evaluate what had occurred

in the two years following the commission of the crime for which he was charged.
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Cf. id. at 555 (noting that when resentencing a juvenile offender, it is proper to

consider a change in circumstances that occurs between the time of the original

sentence and the time of the resentencing). Although the sentencing court must

consider all the circumstances of a particular case, it is not required to

specifically acknowledge each claim of mitigation urged by the defendant, and

failure to acknowledge a particular circumstance does not mean it was not

considered.    State v. Boltz, 542 N.W.2d 9, 10-11 (Iowa Ct. App. 1995).           In

reviewing a sentence, we look to the see if the reasons articulated by the trial

court are sufficient to allow us to determine if an abuse of discretion occurred. Id.

at 11. The reasons provided by the sentencing court here are sufficient for us to

determine the court exercised its discretion in sentencing Wickersham to a five-

year term of incarceration without suspending the sentence. Accordingly, we

affirm.

          AFFIRMED.
