                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0527
                               Filed May 11, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LIONEL CLARK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      The defendant appeals his conviction and sentence for introduction of

contraband (a controlled substance) into a jail. AFFIRMED.




      Karl G. Knudson, Decorah, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                          2


BLANE, Senior Judge.

       Lionel Clark appeals his conviction for introduction of contraband (a

controlled substance) into a jail.1      Clark maintains he received ineffective

assistance from trial counsel because trial counsel failed to object to a mid-trial

amendment to the charge as to the code section.              He also maintains the

sentence he received is cruel and unusual, in violation of his constitutional rights.

I. Background Facts and Proceedings.

       On July 15, 2014, Clark was charged by trial information with introducing

contraband (controlled substance) into a detention facility, in violation of Iowa

Code section 719.7(3)(a) (2013). The matter proceeded to jury trial on February

10–12, 2015.      Immediately prior to the commencement of trial, upon the

prosecution’s motion, the charge was amended to instead allege a violation of

Iowa Code section 719.8, entitled “Furnishing a controlled substance or

intoxicating beverage to inmates at a detention facility.”

       At trial, it was established, both through the officers’ and Clark’s testimony,

that Clark was stopped by officers who observed him staggering in the street

sometime after 11:30 p.m. on July 4, 2014. Clark had been drinking before he

was stopped. He voluntarily submitted to a preliminary breath test, and the result

showed his blood alcohol content was .164.          The officers handcuffed Clark,

placed him in a squad car, and told him they were “going to take [him] in for the

night for public intox[ication].” At trial, Clark admitted he had marijuana on him

when he was stopped and handcuffed by the officers, but he testified that the
1
 Clark was also charged and convicted of possession of marijuana (second offense)
and public intoxication (second offense), but he does not appeal these convictions.
                                              3


officers had confiscated it from him before placing him in the squad car. He

testified that he responded to the officers’ questions about having any illegal

materials on him with a negative because they had already confiscated the

marijuana from him at that time. The officers testified they did not find marijuana

on Clark before placing him in the squad car and stated that he had denied

having any illegal items on him when asked.

         Once they reached the police station, Clark was placed in a jail cell and

searched more completely.            Officer Mast testified that the cell Clark was

searched in had been checked for contraband when Mast’s shift started, and it

was completely empty. He further testified that no one else had been placed in

the cell before Clark. According to the officer, when they were conducting the

more complete search of Clark—removing his shoes, socks, etc.—he noticed a

small plastic bag on the ground near Clark’s feet. The contents of the bag were

later tested and confirmed to be .5 grams of marijuana.

         After the defense rested, the parties and the court spoke about jury

instructions on the record, outside the presence of the jury. The court indicated

there had been an off-the-record discussion about whether “this should be

charged under [Iowa Code sections] 719.8 or 719.7.”2 After some discussion

about changes to the statute as well as recent case law, the court announced,

“Well, because 719.7 is now so clear that it does apply to county jails as well as

facilities under the supervision of the Department of Corrections, I’m going to

recast this so that it would fit under 719.7, recast this marshalling instruction so


2
    The record reflects that the State had not moved to amend the charge at this time.
                                         4


that it would.” During the discussions on the record, defense counsel argued for

application of Iowa Code section 719.7, and the State acquiesced that the jury

could be instructed under either section 719.7 or 719.8. The corresponding jury

instruction given to the jury stated:

              The State must prove all of the following elements of
       Introducing a Controlled Substance Into a Jail:

              1. On or about the 5th day of July, 2014, the defendant
              knowingly introduced marijuana into the Black Hawk County
              Jail.
              2. Marijuana is a controlled substance.

              If the State has proved both of these elements, the
       defendant is guilty of Introducing a Controlled Substance Into a Jail.
       If the State has failed to prove any one of the elements, the
       defendant is not guilty.

       The jury found Clark guilty of each of the charged offenses.        He was

sentenced to a term of incarceration not to exceed five years for introducing a

controlled substance into a jail, and one year each for public intoxication, second

offense, and possession of a controlled substance (marijuana), second offense.

The sentences were ordered to run concurrently.

       Clark appeals.

II. Standard of Review.

       We may decide ineffective-assistance-of-counsel claims on direct appeal if

we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.

This is our standard because such claims have their basis in the Sixth

Amendment to the United States Constitution. State v. Clay, 824 N.W.2d 488,

494 (Iowa 2012).
                                          5


         Clark maintains his sentence is cruel and unusual in violation of the Eighth

Amendment of the United States Constitution and article 1, section 17 of the

Iowa Constitution. We review constitutional claims de novo. State v. Oliver, 812

N.W.2d 636, 639 (Iowa 2012).

III. Discussion.

         A. Ineffective Assistance.

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

prove by a preponderance of the evidence (1) counsel 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). To establish prejudice, Clark

must show there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. See State v.

McCoy, 692 N.W.2d 6, 25 (Iowa 2005). An attorney’s improvident trial strategy,

miscalculated tactics, or mistakes in judgment do not necessarily amount to

ineffective assistance of counsel. State v. Ondayog, 722 N.W.2d 778, 786 (Iowa

2006).     Furthermore, because tactical decisions by counsel must be judged

within the context of the totality of the circumstances on a case-by-case basis, it

is often necessary to preserve such allegations for postconviction proceedings so

that the record can be more fully developed. Id.; see also Iowa Code § 814.7(3)

(“If an ineffective assistance of counsel claim is raised on direct appeal from the

criminal proceedings, the court may decide the record is adequate to decide the

claim or may choose to preserve the claim for [postconviction proceedings].”).
                                             6

Clark’s claim fails if either element is lacking. See Everett v. State, 789 N.W.2d

151, 159 (Iowa 2010).

         On appeal, Clark makes two claims of ineffective assistance. He argues

that trial counsel was ineffective both for failing to object to the charge being

amended from section 719.8 to section 719.7 after both sides rested3 and failing

to move for a motion of judgment of acquittal4 as to the charge under section

719.8. To establish he suffered prejudice from either of trial counsel’s alleged

errors, Clark must establish that he would have been acquitted under section

719.8.

         Iowa Code section 719.8 provides, in pertinent part, “A person not

authorized by law . . . who introduces a controlled substance or intoxicating

beverage into the premises of a [detention facility], commits a class ‘D’ felony.”

Clark makes several specific arguments regarding why he could not be convicted

under section 719.8, and we respond to each in turn.



3
  We note Clark also claims trial counsel was ineffective for allowing Clark’s due process
rights to be violated with the late change of the charge. Clark maintains the late change
prevented him from receiving “adequate notice.” Although the procedure was atypical
and imprudent, it did not affect Clark’s receipt of notice. Clark was charged by trial
information with a violation of section 719.7 in July 2015. That is the charge he intended
to defend against the entire time leading up to trial and the charge the jury was ultimately
instructed on. Because Clark has not identified any way in which the amendment of the
code section affected either the defense he presented or would have presented, he has
not established that he was prejudiced by the late change.
4
  Although appellate counsel refers to the defendant’s motion as one for directed verdict,
it appears trial counsel correctly made a motion for judgment of acquittal. For purposes
of the appeal, we treat appellate counsel’s claim regarding a motion for a directed verdict
as a claim regarding a motion for judgment of acquittal. See State v. Adney, 639
N.W.2d 246, 249 n.2 (Iowa Ct. App. 2001); see also State v. Deets, 195 N.W.2d 118,
123 (Iowa 1972) (holding that grant of motion for directed verdict is tantamount to a
judgment of acquittal in a criminal action) overruled on other grounds by State v. Walker,
574 N.W.2d 280, 283 (Iowa 1998).
                                         7


       First, Clark argues a county jail is not a “detention facility.” However, our

caselaw has established otherwise. See State v. Mitchell, 650 N.W.2d 619, 620

(Iowa 2002); see also State v. Iowa Dist. Ct., 464 N.W.2d 233, 235 (Iowa 1990)

(interpreting section 719.8 and holding that the phrase “detention facility”

includes county jails).   Next, Clark maintains we must read the language of

section 719.8 to find that the use of “premises,” which is an undefined word in the

statute, is “intended to be a reference to the part of the jail housing the general

inmate population.” Although we are not convinced the legislature intended a

definition of premises other than the generally accepted one,5 we do not believe

that even Clark’s proffered definition would require a finding that Clark did not

violate the statute.   Clark was in a secure area of the building and, more

specifically, placed in a cell for the search to be conducted. Although there were

no other inmates there at the time the search was conducted, it is clearly a place

inmates are meant to be kept.

       Next, Clark maintains that section 719.8 should be interpreted as a

specific-intent crime. In the alternative, he maintains that even if it is a general-

intent crime, there is still not sufficient evidence to support a finding he intended

to bring the marijuana onto the premises. In State v. Canas, 597 N.W.2d 488,

495 (Iowa 1999),6 our supreme court was specifically asked to determine

whether section 719.8 is a general or specific intent crime. The court held:

              A review of the statutory language reveals that the offense
       criminalizing the introduction of controlled substances into a

5
  “Premises” are defined as: “A house or building, along with its grounds.” Premises,
Black’s Law Dictionary (10th ed. 2014).
6
  Abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001).
                                          8


        detention facility does not require an intent to do any further act or
        achieve some additional consequence other than the prohibited
        conduct of introducing a controlled substance into a detention
        facility. It is a general intent crime . . . .

Canas, 597 N.W.2d at 495–96. Although the section has been amended slightly

since the court considered it, we are not persuaded that the changes have

affected the requisite intent. Finally, substantial evidence supports a finding that

Clark had the general intent to introduce marijuana, a controlled substance, into

the premises of the jail.

        In Canas, the defendant claimed his trial counsel should have argued the

defendant’s submission to police authority while he had drugs on his person was

not sufficient to show he had the intent to voluntarily introduce drugs into the jail.

Id. at 495. The court was unpersuaded by the defendant’s argument, stating,

“[T]he defendant in the case at bar had the option of disclosing the presence of

drugs concealed on his person before he entered the jail and became guilty of

the additional offense of introducing controlled substances into a detention

facility.”   Id. at 496.    Clark also argues that by doing so he would have

incriminated himself for a different crime, but “[t]he criminal process includes

many situations which require a defendant to make difficult judgments regarding

which course to follow.” Id. Clark further maintains Canas is not applicable

because he did not know he was under arrest when he was taken to the jail.

Clark’s testimony at trial belies this assertion. He testified that as he was being

handcuffed and placed in the squad car, the officers told him they were “going to

take [him] in for the night for public intox[ication].” Additionally, although Clark

testified that the officers removed the marijuana from him before placing him in
                                         9


the squad car, the jury clearly found the officers’ testimony more credible than

Clark’s. Clark knew he had a controlled substance on his person, knew he was

being taken to jail, and failed to disclose his possession of the controlled

substance when asked; nothing more is required to violate section 719.8. See id.

at 495–96.

       Because each of his arguments regarding section 719.8 fails, Clark cannot

establish that he was prejudiced by trial counsel’s alleged errors.

       B. Cruel and Unusual Punishment.

       Clark maintains the five-year sentence he received for violating section

719.7 is cruel and unusual, in violation of the Eighth Amendment of the United

States Constitution and article 1, section 17 of the Iowa Constitution. Clark urges

us to adopt our own framework when reviewing his claim. Because it is generally

the role of our supreme court to decide if precedent should be abandoned, we

decline Clark’s entreaty and apply the framework as our supreme court has

before. See State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014) (“Generally it

is the role of the supreme court to decide if case precedent should no longer be

followed.”).

       Two types of challenges to a sentence for a term of years have been

recognized. A defendant may make a categorical challenge to the sentence,

contending “a particular sentencing practice violated the Eighth Amendment.”

State v. Oliver, 812 N.W.2d 636, 640 (Iowa 2012). A defendant may also make a

“gross proportionality challenge to [the] particular defendant’s sentence.”     Id.

Clark makes a gross proportionality challenge to his particular sentence.
                                         10


       The Iowa Supreme Court set forth the framework for this challenge in

State v. Oliver:

       The first step in this analysis, sometimes referred to as the
       threshold test, requires a reviewing court to determine whether a
       defendant’s sentence leads to an inference of gross
       disproportionality. This preliminary test involves a balancing of the
       gravity of the crime against the severity of the sentence. If, and
       only if, the threshold test is satisfied, a court then proceeds to steps
       two and three of the analysis. These steps require the court to
       engage in an intrajurisdictional analysis comparing the challenged
       sentence to sentences for other crimes within the jurisdiction. Next,
       the court engages in an interjurisdictional analysis, comparing
       sentences in other jurisdictions for the same or similar crimes.

812 N.W.2d at 647 (citation omitted). While the framework for analyzing a gross

proportionality challenge to an individual sentence is the same under the federal

and state constitutions, the Iowa Supreme Court has instructed “that review of

criminal sentences for gross disproportionality under the Iowa Constitution should

not be a ‘toothless’ review.” Id. This means we apply “a more stringent review

than would be available under the Federal Constitution.” Id. at 650.

       We first decide whether Clark’s sentence leads to an inference of gross

disproportionality.   In making this determination, we consider several general

principles. First, “we owe substantial deference to the penalties the legislature

has established for various crimes.” Id. “Criminal punishment can have different

goals, and choosing among them is within a legislature’s discretion.” Graham v.

Florida, 560 U.S. 48, 71 (2010). Second, “it is rare that a sentence will be so

grossly disproportionate to the crime as to satisfy the threshold inquiry and

warrant further review.” Oliver, 812 N.W.2d at 650. Third, “a recidivist offender

is more culpable and thus more deserving of a longer sentence than a first-time
                                         11

offender.”   Id.   And finally, the unique circumstances of a defendant can

“converge to generate a high risk of potential gross disproportionality.” Id. at 651.

       Here, Clark was convicted of a class “D” felony. Although he received the

maximum sentence for that particular crime, the district court also ran his other

sentences concurrently. See Iowa Code § 902.9(1)(e). Additionally, Clark is a

recidivist, and he could have been charged as a habitual offender, in which case

he could have received a fifteen-year sentence for the same conviction. See

Iowa Code § 902.9(1)(c).             Much of Clark’s argument regarding the

disproportionality of the sentence involves his claim that a small amount of

marijuana on his person should not be treated the same as if he brought a

weapon into the premises. It is not. Bringing a “dangerous weapon, offensive

weapon, pneumatic gun, stun gun, firearm ammunition, knife of any length” is a

violation of 719.7(4)(a) and is a class “C” felony, which carries a punishment of

“no more than ten years.”        Iowa Code § 902.9(1)(d).        Additionally, Clark

maintains the punishment is disproportional because he did not voluntarily bring

the contraband onto the premises. For all of the reasons explained in the first

section, this argument also fails.

       Here, giving deference to the sentence established by the legislature and

having considered each of Clark’s arguments, we are not persuaded that Clark’s

sentence gives rise to an inference of gross disproportionality. Thus, we need

not proceed to steps two and three of the analysis. See Oliver, 812 N.W.2d at

653.
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IV. Conclusion.

       Because Clark cannot establish he was prejudiced by trial counsel’s

alleged errors, his claims for ineffective assistance fail. Additionally, because his

five-year sentence does not meet the threshold test of leading to an inference of

gross disproportionality, his claim that the sentence is cruel and unusual fails.

We affirm.

       AFFIRMED.
