                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0605
                             Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANIEL JOSEPH THURMAN, III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Daniel Thurman appeals the sentence imposed after his Alford plea.

AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Brenda J. Gohr (until

withdrawal), Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Doyle, P.J., Greer, J., and Potterfield, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GREER, Judge.

        Daniel Thurman appeals the sentence imposed after he entered an Alford

plea to nine offenses.1 Thurman argues it was improper for the district court to

consider the sentencing recommendation in the presentence investigation report

(PSI), which included his scores on standardized risk assessment tools, while

imposing the sentence. We disagree and affirm Thurman’s sentence.

        I. Background Facts and Proceedings.

        To start, Thurman entered an Alford plea to nine total counts, including

burglary, theft, domestic abuse assault, extortion, and three counts of tampering

with a witness.2 The district court accepted his plea and ordered a PSI. Once

completed, the PSI contained a sentencing recommendation from the department

of correctional services (DCS). The DCS recommended incarceration based on

Thurman’s scores on standardized risk assessments and his conduct while out on

bond.

        At sentencing, his attorney objected and requested a continuance to update

the PSI with a summary of an interview with a pastor discussing the possibility of

Thurman entering a men’s program through a street ministry. His counsel did not




1
  An Alford plea allows the defendant to enter a plea without admitting guilt. North
Carolina v. Alford, 400 U.S. 25, 39 (1970).
2 These crimes range from an aggravated misdemeanor to a class “C” felony.

Because the judgments and sentences were entered before July 1, 2019, the
amended Iowa Code section 814.6(1)(a)(3) (2019) does not apply here. See State
v. Macke, 933 N.W.2d 226, 228 (Iowa 2019) (“On our review, we hold Iowa Code
sections 814.6 and 814.7, as amended, do not apply to a direct appeal from a
judgment and sentence entered before July 1, 2019.”); see also Iowa Code
§ 814.6(1)(a)(3) (limiting appeals from guilty pleas for crimes other than class “A”
felonies).
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object to the PSI’s sentencing recommendation or its inclusion of Thurman’s

scores on risk assessment tools.

      While the court considered the parties’ arguments and sentencing

recommendations, including the recommendation in the PSI, the sentencing judge

determined Thurman was not a candidate for parole based on “[t]he nature of the

offenses that you’ve admittedly committed, your extensive criminal record, [and]

the fact that that record includes numerous instances of domestic violence.” The

court sentenced Thurman to a total period of incarceration not to exceed thirty-five

years. In declining to suspend the prison sentence, the court considered, among

other things, “[t]he information in the PSI.” Thurman appeals.

      II. Standard of Review.

      We review criminal sentences for a correction of errors at law. Iowa R. App.

P. 6.907; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Yet when a

defendant fails to preserve error and requests review under an ineffective-

assistance-of-counsel framework, review is de novo.        State v. Hopkins, 860

N.W.2d 550, 554 (Iowa 2015).

      III. Analysis.

      On appeal, Thurman argues the district court considered improper

sentencing factors when it considered (1) Thurman’s scores on standardized risk

assessment tools and (2) the DCS sentencing recommendation. “‘[I]f a court in

determining a sentence uses any improper consideration, resentencing of the

defendant is required,’ even if it was ‘merely a “secondary consideration.”’” State

v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (quoting State v. Grandberry, 619

N.W.2d 399, 401 (Iowa 2000)).
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       We first find that Thurman has not preserved error on his claims. That said,

even under an ineffective-assistance-of-counsel framework, Thurman’s claims fail

as a matter of law.3

       In State v. Headley, the Iowa Supreme Court considered and rejected

claims virtually identical to Thurman’s. 926 N.W.2d 545, 551 (Iowa 2019). As for

the district court’s consideration of standardized risk assessment tools, the court

determined, “[o]n their face, the tools provide pertinent information that a

sentencing judge may consider. Therefore, we find the district court did not abuse

its discretion in considering the risk assessment tools on their face as contained

within the PSI.”   Id. The court also concluded that because PSI sentencing

recommendations are not binding on the court, a court does not abuse its

discretion by considering these recommendations. Id. at 552. Because it was not

improper for the DCS to include, and the district court to consider, both the risk

assessment tools and the sentencing recommendation in the PSI, Thurman cannot

show his counsel failed an essential duty by not objecting on these grounds at

sentencing.




3 “Ineffective-assistance-of-counsel claims require a showing by a preponderance
of the evidence both that counsel failed an essential duty and that the failure
resulted in prejudice.” State v. Lorenzo Baltazar, 935 N.W.2d 862, 868 (Iowa
2019). Generally, we do not address claims of ineffective assistance of counsel
on direct appeal. Hopkins, 860 N.W.2d at 556. Moreover, effective July 1, 2019,
the legislature prohibited an appellate court from addressing an ineffective-
assistance-of-counsel claim on direct appeal. See 2019 Iowa Acts ch. 140, § 31
(codified at Iowa Code § 914.7 (2019)). This amendment applies prospectively
only and does not affect this case. State v. Macke, 933 N.W.2d 226, 235 (Iowa
2019) (“We conclude the absence of retroactivity language in sections 814.6 and
814.7 means those provisions apply only prospectively and do not apply to cases
pending on July 1, 2019.”).
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IV. Disposition.

For these reasons, we affirm the district court’s judgment and sentence.

AFFIRMED.
