                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1103
                               Filed July 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHAUNTA HOPKINS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



      A defendant challenges her resentencing for several drug convictions.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Brianna Shriver, Student Legal Intern, John Sarcone, County Attorney,

and Stephanie Cox, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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TABOR, J.

       The questions in this appeal are whether the district court abused its

discretion in resentencing Shaunta Hopkins for several drug convictions and

whether Hopkins’s counsel rendered ineffective assistance.          First, Hopkins

contends the court abused its discretion by relying too much on the nature of the

offenses and by failing to consider other applicable sentencing factors,

particularly her efforts at rehabilitation. Second, Hopkins claims counsel was

remiss in failing to object to the use of an outdated presentence investigation

(PSI) report. Given the substantial deference we accord sentencing decisions,

we conclude the district court did not abuse its discretion. We reject the claim of

ineffective assistance because Hopkins does not show counsel failed to perform

an essential duty resulting in prejudice.

I.     Background Facts and Proceedings

       On the morning of May 4, 2011, police officers executed a search warrant

at Hopkins’s home in Des Moines. The search revealed individually packaged

one-gram units of crack cocaine throughout the house, crack cocaine between

the mattresses of her bed, plastic baggies in the living room, a red notebook

listing Hopkins’s name among other individuals, several cell phones, cell phone

photographs of Hopkins holding cash and a gun, two scales, $2025 in cash, and

fifty-one pills that Hopkins claimed to be the controlled substance known as

ecstasy. Testing later determined they were actually caffeine pills. During this

search, Hopkins admitted she sold crack cocaine and also admitted she had

accompanied her boyfriend, Kiko Simmons, on about four occasions while he
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sold drugs.   When the officers searched other homes in Des Moines, they

discovered drugs and drug-related items, as well as cell phones with Hopkins as

a contact.

      On May 27, 2011, the State charged Hopkins with conspiracy to deliver

crack cocaine, possession of crack cocaine with intent to deliver, failure to

possess a tax stamp for crack cocaine, conspiracy to deliver a simulated

controlled substance, and possession of a simulated controlled substance with

intent to deliver.   See Iowa Code §§ 124.401(1)(b)(3), 124.401(1)(c)(3),

124.401(1)(c)(8), 124.401(5), 453B.3, 453B.12 (2011).       Following a trial in

October 2011, a jury found Hopkins guilty on all charges.

      The court ordered a PSI report. The December 12, 2011 report indicated,

among other things, Hopkins was twenty-three years old, she dropped out of high

school while in eleventh grade after having been suspended twice, she had a

pattern of negative peer relationships, she used drugs and alcohol and did not

perceive her use as problematic or as calling for treatment intervention, she had

no prior criminal history, and she had little employment history. The PSI report

recommended Hopkins receive the maximum-authorized prison sentence and be

required to participate in any treatment or programming recommended by her

correctional treatment team.

      On December 19, 2011, the court sentenced Hopkins to indeterminate,

concurrent prison terms of twenty-five years (conspiracy to deliver a controlled

substance), ten years (possession of a controlled substance with intent to

deliver), five years (failure to possess a tax stamp), ten years (conspiracy to
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deliver a simulated controlled substance), five years (possession of a simulated

controlled substance with intent to deliver), and six months (possession of a

controlled substance). Hopkins appealed. On November 15, 2012, this court

ruled the evidence was insufficient to support her conviction for conspiracy to

deliver a simulated controlled substance and affirmed her other convictions.

State v. Hopkins, No. 11-2083, 2012 WL 5537213 (Iowa Ct. App. Nov. 15, 2012).

We remanded to the district court for dismissal of the conviction and

resentencing. See id.

      Before resentencing, Hopkins earned her high school diploma, gained

employment at the prison kitchen and laundry room, received numerous class

certificates, and became involved in a treatment program. While this information

was not included in an updated PSI, it was provided to the district court by

Hopkins’s attorney. On June 26, 2013, the court resentenced Hopkins and cited

both the PSI report and Hopkins’s subsequent successes. The court dismissed

the conspiracy to deliver a simulated controlled substance conviction, and due

largely to the severity of the remaining crimes, the court ordered Hopkins to

serve an otherwise identical sentence. Hopkins again appeals and asks us to

reverse and remand with directions to the Department of Corrections to create an

updated PSI. She also seeks to be resentenced by a different judge.

II.   Standard of Review

      We review sentencing issues for the correction of legal error. State v.

Morris, 416 N.W.2d 688, 689 (Iowa 1987). If a sentence is within the statutory

limits, we review it for an abuse of discretion. State v. Neary, 470 N.W.2d 27, 29
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(Iowa 1991). Abuses of discretion occur “when the court exercises its discretion

on grounds clearly untenable or to an extent clearly unreasonable.” State v.

Barnes, 791 N.W.2d 817, 827 (Iowa 2010).

       Because claims of ineffective assistance of counsel are constitutional

challenges, we review de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa

2010). De novo review requires “independent evaluation based on the totality of

the circumstances as shown by the entire record.” State v. Howard, 509 N.W.2d

764, 767 (Iowa 1993).

       While claims of ineffective assistance of counsel are normally preserved

for postconviction-relief proceedings to allow for an adequate record of the claims

to be developed and to allow the attorney an opportunity to respond to the

claims, State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002), we may resolve a

claim on direct appeal if the record is adequate. State v. Johnson, 784 N.W.2d

192, 198 (Iowa 2010). We see no reason to delay the resolution of the PSI issue

in this case.

III.   Discussion

       A. District Court Abuse of Discretion

       We first consider whether the district court’s conduct in resentencing

Hopkins amounted to an abuse of discretion. Hopkins contends the court failed

to consider all requisite factors—particularly those arising after the initial

sentencing—and the court instead relied too heavily on the nature of the crimes.

       The nature of an offense is a proper sentencing factor, but no single factor

can be “solely determinative.” State v. McKeever, 276 N.W.2d 385, 387 (Iowa
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1979). As Hopkins contends, the district court concentrated on the nature of the

crimes in making its sentencing decision.        Importantly, this was not the only

factor the court considered.

          Citing State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002), Hopkins

stresses the district court erred in not considering her age, character, propensity

to commit other crimes, chances of reform, and past convictions, as well as the

goal of rehabilitation. In State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995)

we ruled, while sentencing courts have a duty to consider all circumstances in a

particular case, it is not necessary to “specifically acknowledge each claim of

mitigation urged by the defendant.” Additionally, in addressing the PSI during

Hopkins’s resentencing, the district court in fact did consider Hopkins’s age and

character, her prior record of convictions, her employment status, and family

circumstances—all analyzed in the context of the societal goal of protecting the

community from further offenses.

          In addressing the PSI, the court cited Hopkins’s “virtually nonexistent”

criminal history and applauded her recent good decisions despite her past

educational failings.    The court further noted Hopkins had “done well in her

current structured environment”—before it finally returned to the severity and

multiplicity of the drug crimes she committed. Addressing such factors, albeit

briefly, is sufficient for us to conclude the district court did not rely solely on one

factor.

          Courts must weigh pertinent matters in determining a proper sentence.

State v. Stakenburg, 215 N.W.2d 265, 267 (Iowa 1974). And inherent in that
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weighing process, the court has the discretion to vary the importance placed

upon each relevant factor as demanded by the facts of each case. See id. A

court treating one factor as more important than another factor is not an abuse of

discretion so long as the court considers multiple factors. See McKeever, 276

N.W.2d at 387.     As such, the district court did not abuse its discretion in

resentencing Hopkins because the court considered multiple factors.

      Hopkins equates the facts at hand to Pepper v. United States, 131 S. Ct.

1229, 1241 (2011), where the Supreme Court ruled a district court may consider

the defendant’s post-sentencing rehabilitation during resentencing and stated

such evidence may, when appropriate, support a downward variance from the

federal sentencing guidelines.       Like the appellant in Pepper, Hopkins

unquestionably made positive changes in her life, as detailed above, during the

eighteen months between the initial PSI and her resentencing. See Pepper, 131

S. Ct. at 1241.   But, we are not convinced the holding in Pepper supports

Hopkins’s challenge to her resentencing.       Id.   Notably, federal sentencing

guidelines are not directly controlling in state sentencing issues. See State v.

Harrington, 805 N.W.2d 391, 395 (Iowa 2011). Furthermore, the district court

here specifically addressed Hopkins’s educational and other achievements at the

resentencing hearing.   Finally, the Supreme Court in Pepper did not require

downward sentencing adjustments for life improvements—the Court merely

allowed them to be considered in mitigation. Peppers, 131 S. Ct. at 1241. The

Court stated “such evidence may, when appropriate, support a downward

variance,” and did not use the words “must” or “shall.” Id. at 1241 (emphasis
                                        8



added).   Regardless of the weight it accorded Hopkins’s improvements, the

district court was not obligated to automatically decrease her sentence because

of the improvements. As such, the court did not abuse its discretion in rendering

a sentence identical to the first sentence imposed.

      B. Ineffective Assistance of Counsel

      Hopkins also contends her counsel was ineffective by failing to object to

the court’s reliance upon the outdated PSI.      The burden of proof in claims

asserting ineffective assistance of counsel falls upon the defendant, thus

requiring Hopkins to establish the claim by a preponderance of the evidence.

See Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980).              Hopkins must

overcome the presumption that counsel is competent. See Sims v. State, 295

N.W.2d 420, 423 (Iowa 1980). Hopkins must prove (1) counsel “failed to perform

an essential duty” and (2) when the claim rests upon a specific act or omission of

counsel at trial, “prejudice resulted therefrom.”     See Snethen v. State, 308

N.W.2d 11, 14 (Iowa 1981).

      We conclude Hopkins has failed to satisfy either of the required elements.

To prove the first prong—counsel’s failure to perform an essential duty—Hopkins

must prove counsel’s assistance was not “reasonable considering all the

circumstances.”   See Strickland v. Washington, 466 U.S. 668, 688 (1984).

Hopkins contends her counsel’s failure to object to the court’s consideration of an

outdated PSI meets this standard because she had made various improvements

to her life in the eighteen months between the filing of the original PSI and the

time of resentencing. While the PSI was not updated to reflect such changes
                                        9



and while the existing PSI was used by the district court, those facts alone are

not enough for us to deem counsel’s conduct unreasonable.

       The Supreme Court has been very clear about the high level of deference

afforded to counsel, stressing any challenges to counsel’s representation are to

be resolved by courts with an emphasis on understanding the challenged

conduct from counsel’s perspective and eliminating biases of reviewing-court

hindsight.   Id. at 689.     Put another way, “a court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel's

conduct.” Id. at 690.

       Here, Hopkins’s counsel brought the updated information to the court’s

attention. Not only did counsel inform the district court of Hopkins’s high school

diploma, employment, class certificates, entrance into a treatment program,

family support, professional skills, peer group changes, and lack of prior criminal

history, the court acknowledged such changes before issuing its sentence. Thus,

we reject Hopkins’s claim counsel’s conduct fell outside the range of

professionally competent assistance.        Counsel likely realized there was no

certainty an updated PSI would have benefited, and not harmed, Hopkins. If, for

instance, the PSI author considered the new information and offered the same

sentencing recommendation, the impact of the updated information would be

lessened. By presenting the information directly to the court, counsel exercised

appropriate discretion. While counsel could have chosen to approach the matter

differently, choosing to inform the court of the updated information at the
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resentencing hearing rather than seeking an updated PSI was an exercise of

reasonable professional judgment.

      Second, even if we assume Hopkins’s counsel breached an essential

duty, the record does not show prejudice resulted.       To establish prejudice,

Hopkins must prove a “reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been different.”

See Strickland, 466 U.S. at 694. The question here is whether a reasonable

likelihood existed that had counsel objected to use of the outdated PSI, the court

would have delayed resentencing, ordered an updated PSI, and that subsequent

reliance on an updated PSI would have resulted in a more lenient sentence. We

conclude Hopkins has not shown the reasonable likelihood of such a result.

      The district court specifically addressed various factors Hopkins contends

her counsel failed to ensure were included in an updated PSI. Most notably, the

court stated Hopkins “apparently is making good decisions in her structured

environment at this point in time, which I applaud.” Similarly, the court stated

“even though she’s done well in her current structured environment, these are

very serious offenses, the nature of the offenses themselves and the multiplicity

of them.”     Both comments show the court considered Hopkins’s life

improvements as relevant factors in deciding her new sentence and, despite not

reading the factors in a current PSI, was fully aware of them. More specifically,

the court addressed Hopkins’s “previous educational situation,” also suggesting it

was privy to the fact it had subsequently changed.
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      We see no reason to believe the outcome would have been different if the

information had been offered in an updated PSI when the information was

nevertheless known to the court before resentencing. Speculative conclusions

are not enough to find prejudice resulting from counsel’s failure to perform an

essential duty—there must be “reasonable probability.”       Id.   Hopkins herself

contends “a less restrictive sentence would have been entirely possible” if the

court had considered an updated PSI. But, mere possibility of a result is not

enough. Hopkins is unable to satisfy the prejudice prong.

      The Sixth and Fourteenth Amendments—from which claims regarding the

effectiveness of counsel arise—grant individuals not only the right to counsel, but

also the right to the effective assistance of counsel.      Id. at 684–86.   Such

effective assistance ensures a fair, adversarial trial in which evidence is

presented to an impartial tribunal.     Id. at 685.   In this case, the relevant

information was presented to the district court and the court considered it before

resentencing.    Because the district court imposed its sentence after its

consideration of numerous relevant factors—many of which were at issue in

Hopkins’s complaint—counsel did not render ineffective assistance by failing to

object to the court’s reliance on an outdated PSI. As such, we affirm.

      AFFIRMED.
