                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1183
                               Filed March 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY SCHMITZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, James M. Drew,

Judge.



      Anthony Schmitz appeals the sentences imposed upon his convictions of

child endangerment resulting in serious injury and serious injury by vehicle.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



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

       Anthony Schmitz appeals the sentences imposed upon his convictions of

child endangerment resulting in serious injury and serious injury by vehicle. He

contends his attorney rendered ineffective assistance at his sentencing hearing

by failing to object to the presentation of victim impact statements of two

nonvictims.

I.     Background Facts and Proceedings

       Schmitz was involved in a head-on, motor-vehicle collision in December

2016. In relation to that collision, he was charged by trial information with the

following offenses: (1) child endangerment resulting in serious injury as to his

daughter M.J.S.; (2) child endangerment resulting in serious injury as to his other

daughter M.S.; (3) serious injury by vehicle as to the driver of the other vehicle,

Heather Meyer; and (4) operating while intoxicated. Schmitz entered a plea of

not guilty and demanded speedy trial. A plea agreement was reached under

which Schmitz would enter guilty pleas to counts one and three1 in return for the

State’s dismissal of counts two and four and any related simple misdemeanor

charges. Schmitz ultimately pled guilty, and the court accepted his plea and

adjudged him guilty of counts one and three.

       At the sentencing hearing, victim impact statements were presented by

Steve Cerwinske,2 Meyer, M.J.S., M.S., and Schmitz’s wife, Anna. The State


1
  These charges carry mandatory terms of incarceration not to exceed ten and five
years, respectively—the district court is not allowed to defer judgment or defer or
suspend the sentence. See Iowa Code §§ 702.11(1), 707.6A(4), (7), 726.6(1), (5),
901.5, 902.3, 902.9(1)(d), (e), 907.3 (2016). However, the district court is provided
discretion in deciding whether to impose the terms consecutively or concurrently. See
id. § 901.8.
2
  Cerwinske is Meyer’s husband or significant other.
                                          3


argued for consecutive terms of imprisonment, citing Schmitz’s failure to take

responsibility for his actions, the severity of his actions, the fact that the two

victims were “separate individuals,” and Schmitz’s status as a probationer at the

time of the offense. Schmitz argued for concurrent sentences, citing the fact that

the charges stemmed from “one incident” and arguing a ten-year term of

imprisonment was sufficient to facilitate rehabilitation.

       In reaching its sentencing decision, the district court stated:

               In your particular case I do recognize that this was one
       incident, but I am very troubled, sir, by the fact that you were on
       probation when this occurred. There’s been no genuine remorse
       that I can perceive. Your prior record is certainly serious, and the
       fact is as far as your addiction goes nothing has worked so far and
       so I don’t know what it takes to get a man of your age’s attention.
       There’s resources out there, and thus far you haven’t taken
       adequate advantage of those. And all of those factors weigh
       against concurrent sentences in this case.

The court sentenced Schmitz to indeterminate terms of imprisonment in the

amount of ten and five years on the respective counts. The court then explained:

              For the reasons I have previously stated, I am ordering that
       the sentences run consecutively. I think this is a serious offense
       with multiple victims, defendant with a serious criminal record and
       thus far has not demonstrated the ability to get his addiction issues
       appropriately under control so I consider him to be a danger to the
       motoring public.

As noted, Schmitz appeals.

II.    Standard of Review

       Schmitz alleges he was provided ineffective assistance of counsel, claims

of which are an exception to the traditional error-preservation rules. See State v.

Fountain, 786 N.W.2d 260, 263 (Iowa 2010). “Claims of ineffective assistance of

counsel implicate the constitutional right to counsel; therefore, we review the
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claim de novo.” State v. Lopez, ___ N.W.2d ___, ___, 2018 WL 672085, at *2

(Iowa 2018).

III.   Analysis

       To succeed on his ineffective-assistance-of-counsel claim, Schmitz “must

establish by a preponderance of the evidence that ‘(1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.’” Id. (quoting

State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v.

Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice

prong or breach of duty first, and failure to find either one will preclude relief.”

State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872

N.W.2d 159, 169 (Iowa 2015)).

       A.      Failure to Perform an Essential Duty

       Schmitz argues trial counsel rendered ineffective assistance in failing to

object to Cerwinske and M.S.’s provision of victim impact statements at the

sentencing hearing. Iowa Code section 915.21(1) allows a “victim” to present a

victim impact statement to the court in a writing or recording, orally, or by proxy.

       “Victim” means a person who has suffered physical, emotional, or
       financial harm as the result of a public offense . . . committed in this
       state. “Victim” also includes the immediate family members of a
       victim . . . who was under eighteen years of age at the time of the
       offense.

Iowa Code § 915.10(3). Schmitz acknowledges that it was permissible for the

sentencing court to receive victim impact statements from Meyer, M.J.S, and his

wife, Anna, as they qualify as “victims” under the counts for which he pled guilty.

Meyer and M.J.S. suffered serious physical injury as a result of the offense and
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Anna was an “immediate family member” of M.J.S., “who was under eighteen

years of age at the time of the offense.” See id. §§ 915.10(3), .21(1).

       The term “immediate family members” contained in section 915.10(3)

includes “spouses and persons related within the second degree of

consanguinity or affinity.” Lopez, 872 N.W.2d at 175 (quoting State v. Sumpter,

438 N.W.2d 2, 8 (Iowa 1989)).            Siblings are related to one another by

consanguinity in the second degree. State v. Allen, 304 N.W.2d 203, 207 (Iowa

1981). M.J.S., the primary victim of the offense, was under eighteen years of

age at the time of the offense. M.J.S. and M.S. are sisters. Thus, under the

statute, M.S. is defined as a separate victim entitled to present her own

statement.    Any objection to M.S.’s provision of a victim impact statement,

therefore, would have been meritless.          “Counsel does not fail to perform an

essential duty by failing to raise a meritless objection.” Lopez, 872 N.W.2d at

169.   We conclude counsel was not ineffective for failing to object to the

sentencing court’s receipt of M.S.’s statement.3

       Cerwinske was not statutorily eligible to provide a victim impact statement.

See Iowa Code § 915.10(3); State v. Tesch, 704 N.W.2d 440, 452 (Iowa 2005)

(concluding a victim’s spouse “was not a ‘victim’ under the first sentence of the

statutory definition because her harm flowed from the injuries suffered by her

husband as a result of the offense and not directly from the criminal acts”);

Sumpter, 438 N.W.2d at 8 (“[W]e interpret the first part of the ‘victim’ definition to

include only . . . the actual subject of the murder, not others who only suffered

3
 Further, we agree with the State that a review of the victim impact statement presented
by M.S. was entirely in support of Schmitz, her father, and making a case for leniency in
sentencing.
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physical or emotional harm because of her death.”). We will accept the State’s

implicit concession that counsel’s failure to object to Cerwinske’s provision of a

victim impact statement amounted to a failure to perform an essential duty. See

Tesch, 704 N.W.2d at 452–53.

       Accordingly, the sole issue remaining is whether the court’s receipt of

Cerwinske’s victim impact statement resulted in prejudice. See Strickland, 466

U.S. at 687; Lopez, 2018 WL 672085, at *2.

       B.     Prejudice

       The prejudice prong of an ineffective-assistance-of-counsel claim “is

established if ‘there is a reasonable probability that, but for the counsel’s

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

Harris, 891 N.W.2d at 185–86 (quoting State v. Reynolds, 746 N.W.2d 837, 845

(Iowa 2008)). “In other words, a party claiming prejudice arising from ineffective

assistance of counsel must establish a probability of a different result sufficient to

undermine our confidence in the outcome of the case.” Id. at 186.

       Schmitz generally argues he was prejudiced by the court’s consideration

of improper evidence at the sentencing hearing. As to Cerwinske’s victim impact

statement, he complains it

       contained information about the emotional and financial impact the
       incident had on him, relayed having to inform his daughter (who
       worked at the hospital Meyer was taken to) about the accident,
       provided detail about the changes to his and Meyer’s life plans
       required to accommodate Meyer’s treatment and recovery, and
       provided information about the extent of resulting medical bills.

He further complains that these matters were not otherwise in the record.
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       Lacking in the record, however, is any affirmative indication that these

matters had any effect on the court’s sentencing decision.        At the sentencing

hearing, the court highlighted its reasoning for choosing to impose consecutive

sentences: the seriousness of the offenses, the fact that Schmitz was already on

probation at the time of the offense, his lack of remorse, his extensive criminal

record, his inability to get his addiction under control, and the fact that there was

more than one victim. The court gave no indication that its decision rested on

any of the matters Schmitz claims were improperly before it. Furthermore, the

presentence investigation report (PSI), which is required to be considered in

sentencing, see Iowa Code § 901.5, detailed Meyer’s extensive injuries and the

resulting treatment she received. The PSI also detailed the injuries sustained by

Schmitz’s daughters. When asked at the sentencing hearing whether he desired

to note any changes, corrections, or objections to the PSI, Schmitz responded in

the negative.

       “[W]e trust that our district courts, when weighing [victim impact]

statements as part of the sentencing determination, will filter out improper or

irrelevant evidence.” State v. Sailer, 587 N.W.2d 756, 764 (Iowa 1998). Schmitz

has the burden to prove prejudice.      The record shows the district court had

available to it and considered a wealth of admissible and relevant information,

and there is no indication it considered Cerwinske’s recitation.       Schmitz has

failed to demonstrate he was prejudiced by the court’s receipt of Cerwinske’s

victim impact statement.

       We affirm Schmitz’s sentences in their entirety.

       AFFIRMED.
