                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1553
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LAMONT MONTEE WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Timothy J. Finn,

Judge.



      The defendant appeals his convictions, alleging ineffective assistance of

counsel, and his sentences, alleging the district court abused its discretion.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

         Lamont Williams appeals his convictions and sentences for second-

degree burglary, simple assault, assault causing bodily injury, and child

endangerment. He alleges his trial counsel was constitutionally ineffective for

failing to object to testimony and other evidence derived from his cell phone

records.    Additionally, he contends the trial court abused its discretion by

ordering the maximum fines on each charge and imposing consecutive prison

sentences. After careful review, we affirm.

I. Background Facts and Proceedings.

         Williams and the complaining witness had a two-year romantic

relationship, which resulted in a child.      All three resided in the complaining

witness’s home.       However, just prior to the incident, Williams and the

complaining witness broke up. Williams moved out of the home but left some of

his personal effects at her home.     The complaining witness eventually took

Williams some of his belongings; however, several of his items remained at the

home, including some legal documents, his identification, his electronic benefits

transfer card, and various photos.

         Although no longer romantically involved, Williams and the complaining

witness kept in communication with each other via text messages and phone

calls.   The complaining witness indicated she no longer wished to pursue a

romantic relationship with Williams despite his repeated sexual advances.

Williams contends the two continued a sexual relationship.

         Between March and April 2015, Williams and the complaining witness

exchanged text messages, described as “just arguing back and forth.”          The
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arguing apparently peaked on April 13 when the complaining witness told

Williams she did not want him anywhere near their child.

        That evening, the complaining witness and a friend stayed at the

complaining witness’s residence, where they smoked marijuana “to relax.” Once

the friend left, the complaining witness said she took two anti-anxiety and one

antidepressant pills before going to sleep. The complaining witness testified she

awakened sometime between 11:30 p.m. and 1:00 a.m. when Williams put his

penis into her mouth. She further stated he proceeded to have sex with her

without her consent while the child was present in the room; Williams denied the

two had sex. Following this, the complaining witness testified Williams asked her

for a ride back to Ames, to which she agreed because she wanted him out of her

home.

        The complaining witness testified that although Williams still had personal

belongings in her home, he was not welcome to enter without her permission.

Williams testified he went to her home in order to retrieve his belongings. He

knew the front door did not lock properly and that he could open it.

        On the way to Ames with the child in the backseat of her car, the

complaining witness and Williams began arguing.         The complaining witness

contended the argument began when Williams inquired into whether she was

seeing other men and bringing them around the child, to which she admitted she

was. According to her, Williams became enraged and struck her three or four

times in the face with a backhanded, closed fist. She testified she then slammed

on the vehicle’s brakes in the middle of Highway 30. Williams testified, however,

she stopped the vehicle because she dropped a marijuana cigarette when she
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became angry Williams was sending text messages to his new girlfriend.

Thereafter, the complaining witness exited the vehicle and attempted to call 911;

however, she testified Williams stopped her from doing so.

       After some time, the complaining witness reentered the vehicle and

resumed driving Williams to Ames. At that point, a male friend of the complaining

witness called her phone, which upset Williams. Williams then hit her in the face

two or three more times. Again, she tried calling 911, but Williams apparently

took her phone from her. At this point, the complaining witness testified she

again stopped the vehicle to attempt to call 911 for a third time.      She then

testified she hung up the phone because Williams told her he hid marijuana in

her car. Williams denied hitting the complaining witness or stating that he hid

drugs in her car but said she hung up the phone because her car smelled of

marijuana.

       The Iowa Department of Transportation had video from traffic cameras

showing a vehicle stopped in the middle of Highway 30 at approximately 1:12

a.m.   Also, Ames police did receive a “hang up” call from the complaining

witness’s phone at 1:25 a.m. but had no record of any other calls from the

complaining witness’s phone.

       After dropping Williams off, the complaining witness testified she drove to

Des Moines to see her friend. She later admitted to having sex with the friend.

       Later on April 14, the complaining witness went to a hospital for

examination. Hospital staff indicated she suffered a mild concussion and multiple

bruises to her face. A sexual-assault exam was also conducted, and Williams’s

DNA was not found. The only DNA found was that of the friend she visited in
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Des Moines.     A treating nurse practitioner testified the complaining witness’s

injuries were consistent with the account of events she gave.

      The State charged Williams by trial information on April 27, 2015.

Williams pled not guilty and demanded a speedy trial.

      On July 10, 2015, the State filed a notice of intent to introduce cell phone

records from Verizon Wireless (Verizon). During a pretrial hearing, following the

denial of his motion to suppress, Williams stipulated to the records’ chain of

custody and foundational requirements.

      The case went to trial on July 21, 2015.          During its case, the State

presented testimony from Iowa Division of Criminal Investigations Special Agent

Holly Witt and Nevada Police Department Officer Ray Reynolds, who obtained

Williams’s cell phone records from Verizon. Both Witt and Reynolds used the

cell phone records as a basis for their testimony, and although the records were

marked as an exhibit at trial, they were not introduced into evidence.

      Officer Reynolds obtained the records with a search warrant, and he noted

the resulting records received from Verizon contained “hundreds of pages of cell

phone records.” Officer Reynolds indicated the records were sent to Special

Agent Witt to analyze and summarize.

      Special Agent Witt testified she examined the cell phone records to

determine Williams’s cell phone location at certain times during the evening of

the incident.   She explained the records contained round-trip delay time,

evolution data optimized for internet, small message service for text messages,

and phone call details. She explained the records had been certified as true and

accurate from Verizon and that she initially thought the times listed in the records
                                        6


were in Central Standard Time unless otherwise indicated.          However, Witt

apparently called and spoke with an employee from Verizon who verified the

times were in Mountain Time.

      The State then introduced a summary of the information Witt examined

from the cell phone records, to which Williams did not object. Witt testified how

Williams’s phone was located in certain relevant areas, namely his house, the

complaining witness’s house, and his new girlfriend’s house, all at times that

corroborated the complaining witness’s account of the evening.

      The jury found Williams guilty of second-degree burglary, in violation of

Iowa Code sections 713.1, 713.5 (2015); two counts of simple assault, in

violation of Iowa Code sections 708.1, 708.2(6); assault causing bodily injury, in

violation of Iowa Code sections 708.1, 708.2(2); and child endangerment, in

violation of Iowa Code section 726.6(1)(a), 726.6(3), 726.6(7).

      Williams filed a motion for new trial and motion in arrest of judgment on

August 28, 2015; however, the court denied both. On September 2, the court

sentenced Williams to ten years’ imprisonment and a $10,000 fine for the

second-degree burglary count, thirty days’ imprisonment with credit for time

served and a $100 fine for each simple-assault count, one year imprisonment

and an $1875 fine for the assault-causing-bodily-injury count, and two years’

imprisonment and a $6250 fine for the child endangerment count. The court

ordered all sentences to run consecutively.

      Williams appeals. We treat his case as a direct appeal as of right except

for the two simple misdemeanor assault convictions. There is no right of appeal

from a conviction for a simple misdemeanor; any appeal must be by way of
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discretionary review.    See Iowa Code § 814.6.           Williams did not seek

discretionary review from his convictions for assault.       The Iowa Rules of

Appellate Procedure provide that if an appeal is before the court and the wrong

form of review was sought, “the case shall not be dismissed, but shall proceed as

though the proper form of review had been requested.” Iowa R. App. P. 6.108.

We treat this appeal as including a delayed request for discretionary review of his

assault convictions.

II. Discussion.

      A. Ineffective Assistance.

      Williams maintains his counsel failed to object to the admission of certain

testimony and other evidence derived from cell phone records. Specifically, he

argues the testimony from Special Agent Witt and Officer Reynolds concerning

the time zones of the phone information amounted to hearsay, the statement a

Verizon employee made to Witt about the time zones denied his right to

confrontation, and the testimony from Witt and Reynolds was irrelevant and

prejudicial because of alleged inaccuracies. Because he asserts these claims

under an ineffective-assistance framework, we review de novo. See State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).

      To prevail on a claim of ineffective assistance of counsel, Williams must

prove by a preponderance of the evidence (1) his attorney failed to perform an

essential duty and (2) prejudice resulted from the failure.         See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We “look to the cumulative effect

of counsel’s errors to determine whether the defendant satisfied the prejudice

prong.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012). Williams’s claim will
                                          8

fail if either element is lacking. See State v. Ambrose, 861 N.W.2d 550, 556

(Iowa 2015). Williams must show “a reasonable probability that, but for counsel’s

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

Strickland v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id.

         We ordinarily do not consider ineffective-assistance claims on direct

appeal. See State v. Taylor, 310 N.W.2d 174, 179 (Iowa 1981). While “[w]e

prefer to reserve such questions for postconviction proceedings so the

defendant’s trial counsel can defend against the charge . . . we depart from this

preference in cases where the record is adequate to evaluate the appellant’s

claim.” Id. (citation omitted).

         Williams’s claims are based upon the testimony and other evidence

derived from cell-phone-record documents not introduced into evidence during

trial.   The State argues claims such as these involving documents not in

evidence are best preserved for possible future postconviction relief proceedings,

and we agree. See State v. Decamp, 622 N.W.2d 290, 296 (Iowa 2001) (holding

“[i]neffective assistance of counsel claims presented on direct appeal are

typically preserved for postconviction relief proceedings to all for a full

development of the facts surrounding the conduct of counsel”). Therefore, we

preserve Williams’s ineffective-assistance-of-counsel claims for possible future

postconviction-relief proceedings.

         B. Sentencing.

         Next, Williams argues the court abused its discretion by sentencing him to

serve consecutive maximum prison sentences and imposing maximum fines. He
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does not, however, argue the court abused its discretion in sentencing him to

prison, nor does he contend the court failed to give adequate reasons. He urges

us to vacate his sentence and remand for resentencing.

       When reviewing a district court’s sentencing decisions, we will not reverse

absent either an abuse of discretion or a defect in the sentencing procedure such

as the consideration of inappropriate matters. See State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002). “[T]he decision of the district court to impose a particular

sentence within the statutory limits is cloaked with a strong presumption in its

favor,” and the choice of one sentencing option over another does not

necessarily constitute error. Id. at 724-25.

       “In applying discretion, the court ‘should weigh and consider all pertinent

matters in determining proper sentence, including the nature of the offense, the

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

chances for his reform. . . . The punishment should fit both the crime and the

individual.’”   State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (citations

omitted).

       Here, the district court imposed the following sentences: ten years’

imprisonment and a $10,000 fine for second-degree burglary; thirty days’

imprisonment with credit for time served and $100 fine for each simple assault

count; one year imprisonment and an $1875 fine for assault causing bodily injury;

and two years’ imprisonment and a $6250 fine for child endangerment.          The

court further ordered the sentences run consecutively. While Williams claims the

maximum sentences are excessive, each is within the range of punishment

allowed and each is supported by adequate reasons.
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      As to the fines, we find the court did not abuse its discretion. While it is

true the fines are the maximum allowed under the Iowa Code, 1 they are within

the allowable range. Williams argues the fines are excessive—a total of $18,325

in fines when he currently owed approximately $20,000 in past due child support

and had a continuing duty to pay child support. He argues the fines are so

sizable it effectively guarantees he will never be able to pay them, and in

ordering them, the court abused its discretion. However, the district court had

many grounds to consider when it imposed sentence. The court explained:

             Mr. Williams, whenever the court imposes a sentence, it’s
      required to consider a number of factors. Included in that are the
      nature of the offense, any previous criminal record that the
      defendant may have, any mitigating factors which may exist.
             But basically it boils down to two things. One is a sentence
      that will provide the best chance for rehabilitation for you as a
      person who has violated the law; and secondly, a sentence that will
      provide for the protection of the community.
             When I review your presentence investigation and consider
      the evidence presented here, a couple things jump out at me.
             One is the fairly lengthy criminal record that’s ongoing over a
      number of years. It appears to me that you have been given
      numerous opportunities to rehabilitate yourself and those have
      been unsuccessful.
             Next, I note the nature of the offense here. I note that both
      in the presentence investigation as well as your statements here
      today, you refer to this as a mistake. You do not accept
      responsibility for your actions. And you blame the jury for finding
      you guilty of something you claim to not have done.
             In my opinion and based on what the jury said, I think the
      evidence was overwhelming that you committed a criminal offense

1
  Second-degree burglary is a class C felony, punishable by no more than ten years’
imprisonment and a fine of at least $1000 not to exceed $10,000. See Iowa Code
§§ 713.1, 713.5, 902.9(d). Simple assault is a simple misdemeanor, punishable by no
more than 30 days’ imprisonment and a fine of at least $65 not to exceed $625. See
Iowa Code §§ 708.1, 708.2(6), 903.1(a). Assault causing bodily injury is a serious
misdemeanor, punishable by no more than one year imprisonment and a fine of at least
$315 not to exceed $1875. See Iowa Code §§ 708.1, 708.2(2), 903.1(b). Child
endangerment is an aggravated misdemeanor, punishable by no more than two years’
imprisonment and a fine of at least $625 but not to exceed $6250. See Iowa Code
§§ 726.6(7), 903.1(2).
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       and it was not a mistake to go into this house after dark in the
       middle of the night where you had no permission to be there and
       assault your former girlfriend.
               So the fact that you’re accepting no responsibility for your
       actions is a factor which the court will consider here.
               ....
               Whenever—when I think about this, and I heard you say it
       that you have got all of these children that you need to take care of.
       Well, I don’t—it didn’t appear to me that you’re doing a very good
       job of taking care of them.

On our review, we note the district court properly considered various factors and

options when imposing punishment on Williams.          Nothing in the punishment

exceeds statutory limitations, and we find the court did not abuse its discretion.

III. Conclusion.

       The record before us is insufficient to address Williams’s ineffective-

assistance claims, and as such, we preserve those for possible future

postconviction-relief proceedings. We also find the district court’s imposition of

maximum fines and consecutive sentences was not an abuse of its discretion.

Therefore, we affirm.

       AFFIRMED.
