                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0101
                               Filed August 2, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CAIN M. HENDRICKSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.

Harris, District Associate Judge.



       Defendant appeals claiming district court relied on improper information in

sentencing. AFFIRMED.




       Dylan J. Thomas, Mason City, for appellant.

       Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Zachary C.

Miller, Assistant Attorneys General, for appellee.




       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.

       Cain Hendrickson pled guilty to operating while intoxicated (OWI). The

court sentenced him to 180 days in the county jail, with all but twenty days

suspended, plus a fine and other applicable provisions. Hendrickson appeals,

arguing the district court abused its discretion and considered improper factors

when sentencing him. Specifically, he claims (1) the court improperly considered

an allegation of the use of bath salts1 in the minutes of testimony, (2) his counsel

provided ineffective assistance in failing to deny the admission of his use of bath

salts, (3) the statements in the minutes of testimony attributed to his use of bath

salts did not meet the requirements for an admission exception, (4) the court

improperly considered unproven juvenile offenses, and (5) the court relied on

prior offenses referenced in his substance-abuse evaluation.

       The State charged Hendrickson by trial information with OWI, alleging one

or more of three ways in which he committed the offense: he operated a motor

vehicle while (1) “under the influence of an alcoholic beverage or other drug or a

combination of such substances,” (2) “having an alcohol concentration of .08 or

more,” or (3) “any amount of a controlled substance is present in the person, as

measured in the person’s blood or urine.” Iowa Code § 321J.2(1) (2016). He

pled guilty to OWI in writing and agreed “the Court may . . . rely upon th[e]

minutes [of testimony] as a factual basis for this guilty plea.” The transcript of the

record at sentencing shows the court accepted the written guilty plea and

Hendrickson did nothing to try to limit his plea to alcoholic beverages or any

1
 “Bath salts” is a reference to illegal synthetic drugs. See Iowa Code §§ 124.406(6)(i),
124.401; Jake Schaller, Not for Bathing: Bath Salts and the New Menace of Synthetic
Drugs, 16 J. Health Care L. & Pol’y 245, 268 (2013).
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particular substances as the source of his intoxication, and the court did nothing

to indicate that, for the factual basis for the plea, it was limiting its consideration

of the evidence to only alcohol or other specified substances.

       The minutes of testimony recited facts upon which the court could have

relied to establish the factual basis for the plea under any of the alleged

alternatives. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). The lab

results showed Hendrickson’s blood alcohol level was 0.198 and he was positive

for THC.      The district court considered Hendrickson’s admission to law

enforcement and hospital personnel that he consumed alcohol and used bath

salts prior to the accident, which had resulted in law enforcement intervention

and Hendrickson’s eventual hospitalization and arrest. Hendrickson also made

statements both in the ambulance and at the hospital concerning his long-term

use of bath salts. In its sentencing order, the district court indicated it considered

those facts and the contents of his substance-abuse evaluation, indicating

marijuana use since he was thirteen years old, alcohol use since he was

seventeen, and mental-health issues.

       A sentencing court is required to consider “all pertinent information” and to

determine a sentence that “will provide maximum opportunity for the

rehabilitation of the defendant, and for the protection of the community.” Iowa

Code § 901.5. The rules of evidence—except for those on privilege—do not

apply to sentencing proceedings.       Iowa Ct. R. 5.1101(c)(4). The substance-

abuse evaluation was required by statute. Iowa Code § 321J.2(7)(a). Here, the

contents of the substance-abuse evaluation report were prepared for the purpose

of showing the history and pattern of substance abuse, and to determine
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recommended treatment. From our reading of the sentencing order, the court

considered pertinent information, not as criminal history information or allegations

of other crimes, but as indicative of Hendrickson’s need for rehabilitation based

on his long-term substance abuse.          The court then structured a sentence

designed to provide what the court considered as maximum opportunity for

rehabilitation and for protection of the community. We find no abuse of discretion

and no error in the court’s consideration of the statutorily required report.

       Based on the foregoing, we also determine that counsel’s conduct did not

fall below professional standards by failing to object to the court’s consideration

of the facts admitted by Hendrickson, those fairly considered by the court in

finding a factual basis for the plea, and those contained in the required

substance-abuse evaluation. See State v. Thorndike, 860 N.W.2d 316, 320 (Iowa

2015) (requiring that, in order to succeed on a claim of ineffective assistance of

counsel, a defendant must show “by a preponderance of the evidence: ‘(1) his

trial counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice’”); accord Strickland v. Washington, 466 U.S. 668, 687 (1984).

       AFFIRMED.
