                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0002
                           Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STACY LEIGH ROOK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly,

Judge.



      The defendant appeals from the district court’s order revoking the

defendant’s deferred judgment. AFFIRMED.



      Thomas M. McIntee of Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.

I. Background Facts and Proceedings.

         On September 23, 2014, Stacy Rook was charged by trial information with

the      following:   (1)   conspiracy   to       manufacture,    deliver,   or   possess

methamphetamine (five grams or less); (2) possession of pseudoephedrine as a

precursor with intent to manufacture, sell, distribute; (3) possession of lithium as

a precursor with intent to manufacture, sell, distribute; and (4) possession of

ether as a precursor with intent to manufacture, sell, distribute. All counts were

in violation of Iowa Code section 124.401 (2014).                Rook pleaded guilty to

possession of pseudoephedrine, and the remaining charges were dropped. At

sentencing, Rook received a deferred judgment and probation for a period of two

years. Rook’s conditions of probation required her to abstain from the use or

possession of illegal drugs or drug paraphernalia and submit to urinalysis or

breathalyzer testing upon the request of a probation officer.

         On March 24, 2016, the Department of Correctional Services (DCS) filed a

report of probation violations by Rook. The report detailed several violations of

Rook’s probation, including three incidents where Rook tested positive for illegal

substances between August 2015 and January 2016. The report also stated that

Rook admitted to her probation officer that she had used illegal substances on

several occasions.

         A June DCS report outlined additional probation violations by Rook. The

supplemental report indicated Rook failed to submit to a random drug test in

April.     Additionally, in May, Rook missed a scheduled appointment, tested
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positive for methamphetamine, and was charged with simple assault. In June,

High Risk Unit officers located drug paraphernalia at Rook’s residence.

       Rook began inpatient substance-abuse treatment with the Department of

Veteran Affairs (VA) in August 2016, and she was discharged in October. Rook

also participated in outpatient substance-abuse treatment through the VA.

However, in December, DCS filed an additional report of probation violations

detailing incidents where Rook tested positive for methamphetamine and failed to

appear for a random drug test.

       On December 6, the State filed an application for adjudication of guilt and

sentencing. As part of its application, the State filed a letter from Rook’s clinical

social worker explaining Rook’s substance-abuse diagnoses and treatment

through the VA. The matter came on for a hearing on December 22, and counsel

represented Rook. Rook stipulated to each of the allegations in the application.

The court engaged in the following colloquy with Rook:

              THE COURT: So I need to inform you of your rights before I
       can accept the stipulation.        I need to make sure that you
       understand your rights that you have with the regard to the State’s
       applications. You have a right to a hearing on the State’s
       applications, all of them, not just the first one, but all three of the
       supplemental applications. Do you understand that?
              MS. ROOK: Yes, ma’am.
              THE COURT: You also have a right to ask questions of the
       State’s witnesses that they would present in supporting their
       applications and ask questions of your own witnesses and
       subpoena witnesses to testify on your behalf. Do you understand
       that you have all of those rights with regard to these applications?
              MS. ROOK: Yes, Your Honor.
              THE COURT: You also would have the right to ask
       questions of your own witnesses and subpoena witnesses to testify
       on your own behalf, which basically means that if you had
       witnesses that were not willing to come to court, that you would ask
       the Court to subpoena them so that they would be required to come
                                       4


      to court to support your side of the case. Do understand that you
      also have that right?
             MS. ROOK: Yes, I do, Your Honor.
             THE COURT: You also have a right to testify on your own
      behalf; however, no one can force you to testify, and the State
      could not call you as a witness in order to prove the violations
      before the court. Do you understand that?
             MS. ROOK: Yes, ma’am.
             THE COURT: You also have a right to be represented by an
      attorney, and if you could not afford an attorney, the court will
      continue to appoint an attorney to represent you; do you
      understand that?
             MS. ROOK: Yes, ma’am.
             THE COURT: And do you understand that you have all of
      these rights? Is that yes?
             MS. ROOK: Yes, yes, ma’am.
             THE COURT: And you understand that by stipulating or
      agreeing that you violated the terms of your deferred judgment
      here, you’re waiving all of these rights?
             MS. ROOK: Yes, Your Honor.
             THE COURT: And do you understand that if you have a
      hearing, that the State . . . would have . . . to prove beyond a
      reasonable doubt that you willfully and intentionally violated the
      terms of your sentencing order and probation as set forth in the
      State’s application and all of the supplemental applications thereto?
             MS. ROOK: Yes, Your Honor.

(Emphasis added). The court also allowed a recess for counsel to review the

State’s application with Rook. The court stated, “I’m going to take a break here

for a few minutes and allow you an opportunity to review the applications as well

as the reports with your client so that she understands what it is that she’s

agreeing to here.” Following the recess, the court confirmed with Rook that she

wanted to proceed, verified the stipulation was voluntary, and reviewed each of

the State’s allegations to confirm its accuracy.     Rook confirmed all of the

allegations, and the court found Rook “willfully and intentionally violated the

terms of her sentencing order.”
                                         5


       At the disposition phase of the hearing, Dawn Larson, Rook’s community

treatment coordinator testified on behalf of the State. Larson discussed Rook’s

mental-health diagnosis and treatment with a psychiatrist at the VA.        Larson

testified that Rook had ten drug-related violations during her probation, and that

Larson discussed with Rook the possibility of losing her deferred judgment.

      Following the hearing, the court revoked Rook’s deferred judgment,

adjudicated Rook guilty of the underlying offense, and sentenced Rook to an

indeterminate term of incarceration of up to five years. The court suspended the

sentence, placed Rook on probation, and required Rook to reside at a residential

treatment facility as a condition of her probation. Rook appealed the court’s

adjudication of guilt and sentencing order, claiming ineffective assistance of

counsel during the proceedings.

II. Standard of Review.

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

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).

III. Discussion.

      Rook claims counsel was ineffective during the probation-revocation

hearing. First, Rook argues counsel was ineffective for failing to verify a factual

basis for the stipulation and to ensure Rook’s stipulation was knowing, intelligent,

and voluntary. Second, Rook argues counsel had a duty to investigate Rook’s

mental-health condition in more detail in order to pursue a diminished-capacity

defense to avoid revocation of Rook’s deferred judgment.

      To prove her claims of ineffective assistance of counsel, Rook must prove

by a preponderance of the evidence that (1) counsel failed to perform an
                                       6

essential duty and (2) she suffered prejudice as a result. See State v. Morgan,

877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either prong is not

proved. Id. When a defendant chooses to raise an ineffective-assistance-of-

counsel claim on direct appeal, we may either determine the record is adequate

and decide the claim or find the record is inadequate and preserve the claim for

possible postconviction proceedings. See State v. Neitzel, 801 N.W.2d 612, 624

(Iowa Ct. App. 2011).

       To prove the first prong of this claim, Rook must show counsel’s

performance fell outside the normal range of competency. See State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006).       Starting “with the presumption that the

attorney performed her duties in a competent manner,” “we measure counsel’s

performance against the standard of a reasonably competent practitioner.” State

v. Maxwell, 743 N.W.2d 185, 195 195–96 (Iowa 2008). Although counsel is not

required to predict changes in the law, counsel must “exercise reasonable

diligence in deciding whether an issue is ‘worth raising.’” State v. Westeen, 591

N.W.2d 203, 210 (Iowa 1999) (quoting State v. Schoelerman, 315 N.W.2d 67, 72

(Iowa 1982)). In accord with these principles, we have held that counsel has no

duty to raise an issue that has no merit. State v. Schaer, 757 N.W.2d 630, 637

(Iowa 2008); State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (“Counsel

cannot fail to perform an essential duty by merely failing to make a meritless

objection.”).

       To revoke an individual’s probation, whether the probation was ordered as

part of a deferred judgment or a suspended sentence, the court may hold a

probation-revocation hearing based on probable cause of a violation of the
                                        7

conditions of probation. See Iowa Code §§ 907.3(1)(b), 908.11 (setting forth

deferred judgment and probation procedure).          The court then imposes a

disposition if a probation violation is proven by a preponderance of the evidence.

Id. (citing Morrissey v. Brewer, 408 U.S. 471, 485-87 (1972)).           Probation

revocation is a civil proceeding and not a stage of criminal prosecution. Gagnon

v. Scarpelli, 411 U.S. 778, 782 (1973). Because revocation is not a stage of

criminal prosecution, the rules of criminal procedure do not apply and “the

proceedings can be informal, even summary.” Calvert v. State, 310 N.W.2d 185,

187 (Iowa 1981).    The “full panoply of rights due a defendant” in a criminal

proceeding do not apply to probation revocations. Morrissey, 408 U.S. at 480. It

is only necessary that proof of a violation of the terms and conditions of a

probation agreement be supported by a preponderance of the evidence to justify

a revocation.    Rheuport v. State, 238 N.W.2d 770, 772 (Iowa 1976).             A

preponderance of the evidence will support the revocation of a deferred

judgment, as well as a probation violation, after a conviction. See State v. Kirby,

622 N.W.2d 506, 510 (Iowa 2001).        Revocations are reviewed for abuse of

discretion, and it has been asserted that an admission will satisfy the

requirement. Dolan, 496 N.W.2d at 279–80. Even the defendant’s silence in

response to a direct question can be considered as supporting a probation

revocation. Calvert v. State, 310 N.W.2d 185, 189 (Iowa 1981). In the instant

case, there was an unqualified admission to the violation made in response to a

direct question. The revocation was supported by a preponderance of the

evidence, and there was no abuse of discretion. See State v. Kline, No. 12-

0366, 2013 WL 3291865, at *2 (Iowa Ct. App. June 26, 2013).
                                             8


         However, certain due process rights are still guaranteed to the

defendant. Id. at 487–89. The minimum requirements of due process require:

       (a) written notice of the claimed violations of [probation]; (b)
       disclosure to the [defendant] of evidence against him; (c)
       opportunity to be heard in person and to present witnesses and
       documentary evidence; (d) the right to confront and cross-examine
       adverse witnesses (unless the hearing officer specifically finds
       good cause for not allowing confrontation); (e) a ‘neutral and
       detached’ hearing body such as a traditional parole board,
       members of which need not be judicial officers or lawyers; and (f) a
       written statement by the factfinders as to the evidence relied on and
       reasons for revoking [probation].

Id. at 489; see also Calvert, 310 N.W.2d at 188 (explaining due process

requirements); Patterson v. State, 294 N.W.2d 683, 684 (Iowa 1980) (holding

principles established in Morrissey apply to probation revocation proceedings).

These requirements may be waived by the petitioner. Patterson, 294 N.W.2d at

684. Rook does not claim her due process protections were not provided to her.

       A. Factual Support for Violations.

       Rook argues counsel was ineffective for failing to ensure the stipulation

was knowingly, intelligently, and voluntarily made1 and for allowing Rook to

stipulate to facts unsupported by a factual basis, citing Rhoades v. State. 848

N.W.2d 22, 29 (Iowa 2014). Rhoads, however, addresses the factual basis to

support a defendant’s guilty plea—not the factual stipulation in a probation

revocation hearing. Id. Here, Rook did not enter a guilty plea at the deferred



1
  Rook argues the court erred by accepting the stipulation without finding the stipulation
was knowing, intelligent, and voluntary. Counsel did not present this argument at the
district court level. Therefore, it is not preserved. See State v. Howse, 875 N.W.2d 684,
688 (Iowa 2016); see also Boyle v. Alum–Line, Inc., 710 N.W.2d 741, 751 n.4 (Iowa
2006) (“When a district court fails to rule on an issue properly raised by a party, the party
who raised the issue must file a motion requesting a ruling in order to preserve error for
appeal.”).
                                              9


judgment probation-revocation hearing2; she stipulated to the facts contained in

the State’s application.       See Morrissey, 408 U.S. at 480.    Rook made an

“unqualified admissions” in response to direct questions. See Kline, 2013 WL

3291865, at *2 (holding the probation revocation was supported by a

preponderance of the evidence when the defendant made an unqualified

admission to the probation violation).

         The record supported the facts contained in Rook’s stipulation.     Rook

admitted to using illegal substances or testing positive for illegal substances ten

times during her probation. During the hearing, the court explained in detail to

Rook the process of the hearing, the consequences of stipulating to the facts of

the application, and Rook’s right to testify on her own behalf. The court allowed

defense counsel an opportunity to review the application with Rook in more detail

during a recess. The court then asked Rook again if she understood the nature

of the stipulation after defense counsel reviewed the application with Rook. The

court reviewed each fact supporting the application with Rook to verify its

accuracy, and Rook admitted to each fact in the application. The court then

accepted Rook’s stipulation. Rook had multiple opportunities to challenge the

State’s factual assertions if they were untrue. Abstaining from illegal substances

is a condition to Rook’s probation. There was clear support for the stipulated

facts in the record. Rook’s counsel was not ineffective for pursuing a defense

that has no merit. See Schaer, 757 N.W.2d at 637; Bearse, 748 N.W.2d at 215.




2
    Rook pleaded guilty to the underlying offense in 2014.
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      B. Mental Health Status.

      Rook next argues counsel was ineffective for failing to investigate Rook’s

mental-health issues to provide a diminished capacity defense to prevent

revocation of the deferred judgment.   Rook argues there was not an adequate

investigation into her mental-health history. The VA social worker wrote a letter

to the court explaining Rook’s diagnosis and treatment, and the community

service officer testified that Rook struggled with bi-polar disorder.     Rook’s

mental-health status was evident from the record made.        Counsel was not

ineffective. See Schaer, 757 N.W.2d at 637.

      AFFIRMED.
