                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0040
                             Filed October 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH DEAN WEAVER JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Carla T. Schemmel

(plea and continuation of sentencing) and Robert J. Blink (sentencing), Judges.



       Kenneth Weaver appeals his sentence following his guilty plea to one

count of theft in the second degree. AFFIRMED IN PART, VACATED IN PART,

AND REMANDED.



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

Appellate Defender, for appellant.

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

General, John Sarcone, County Attorney, and Michael Salvner, Assistant County

Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
                                           2


POTTERFIELD, Judge.

       Kenneth Weaver appeals his sentence following his guilty plea to one

count of theft in the second degree.

       I. Factual and Procedural Background

       On May 28 and June 5, 2014, Weaver sold photography equipment to a

retailer in Urbandale.    The description and serial numbers of the equipment

matched those of equipment stolen in a car burglary on May 13, 2014. A police

officer and a detective approached Weaver. Weaver agreed to speak with them.

He admitted to selling the equipment to the retailer and admitted he knew the

equipment was stolen. Weaver was charged with theft in the second degree in

violation of Iowa Code section 714.1(4) (2013).1

       Weaver pleaded guilty pursuant to a plea agreement. The terms of the

agreement provided that the State would dismiss a separate charge against

Weaver for driving while barred. Sentencing took place on December 4, 2014.

Both Weaver and the State asked the court to sentence him according to the

recommendations of the presentence investigation (PSI) report. The court also

had medical reports stating Weaver was unable to work due to back pain.

However, those reports were generated in March of 2014. During the colloquy,

Weaver’s counsel stated Weaver agreed he would be able to perform work tasks

that were not physically demanding. The court sentenced Weaver according to

the PSI recommendations: a five-year term of incarceration that the court


1
   Iowa Code section 714.1(4) provides, “A person commits theft when the
person . . . [e]xercises control over stolen property, knowing such property to have been
stolen, or having reasonable cause to believe that such property has been stolen . . . .”
                                        3


suspended, two years on probation with placement in a residential facility, a

suspended fine, surcharges, and restitution. In its sentencing order, the court

ordered the driving-while-barred charge dismissed and ordered Weaver to pay

the court costs of the dismissed charge. Weaver appeals.2

      II. Standard of Review

      We review the district court’s sentencing order for the correction of errors

at law. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). “We may correct an

illegal sentence at any time.” State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008).

Otherwise, “[w]e will not vacate a sentence on appeal unless the defendant

demonstrates an abuse of trial court discretion or a defect in the sentencing

procedure such as the trial court’s consideration of impermissible factors.” State

v. Lovell, 857 N.W.2d 241, 242–43 (Iowa 2014).           “We review ineffective-

assistance-of-counsel claims de novo.” State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006).

      III. Discussion

      Weaver raises three issues through counsel and multiple additional issues

pro se.

               A. Abuse of Discretion

      Weaver first asserts the district court’s sentencing decision to place him in

a residential facility constituted an abuse of the court’s discretion. See State v.

Evans, 672 N.W.2d 328, 331 (Iowa 2003). “An abuse of discretion is found when

2
 Weaver filed a pro se notice of appeal on January 9, 2015. Although the notice of
appeal was not timely, our supreme court ordered sua sponte the appeal to proceed
because Weaver had “exhibited a good faith effort to perfect his appeal within the
applicable time period.”
                                            4


the court exercises its discretion on grounds clearly untenable or to an extent

clearly unreasonable.” Id.

       Weaver concedes the district court sentenced him in accordance with the

sentence he himself requested.3 He nevertheless argues the court was required

to sentence him even more leniently by granting him street probation. Weaver

argues the court abused its discretion by placing him in a residential facility and

requiring him to obtain employment. His argument ignores the fact that the court

ordered him to obtain employment only “to a degree [he is] reasonably able to do

so.” Weaver himself stated to the court through counsel that he believed he

would be able to perform work that is not physically demanding. The medical

report from Weaver’s doctor states that, as of March 2014, he was unable to

work; however, it also contemplates his ability to eventually rejoin the workforce.

The court’s exercise of discretion in sentencing Weaver was not clearly

untenable or unreasonable.        The sentence in fact comported with Weaver’s

expectations and request. We affirm the district court’s exercise of its discretion

in sentencing.

               B. Impermissible Sentencing Factor

       Weaver next suggests the district court considered an impermissible factor

in reaching its sentencing decision, requiring resentencing before a different

3
  The State proposes a novel application of our error preservation and waiver doctrines
that would render Weaver’s abuse-of-discretion claim waived. The State argues Weaver
should not be permitted to challenge a sentence he requested, citing as analogies our
invited-error rule pertaining to evidentiary objections and probationers’ challenges to
their own requested extensions. See State v. Mandicino, 509 N.W.2d 481, 481 (Iowa
1993); State v. Hinkle, 229 N.W.2d 774, 750 (Iowa 1975). Though the State presents a
colorable argument, we decline to create a new rule of law restricting defendants’
abilities to challenge a sentencing court’s exercise of discretion in cases such as the one
before us now.
                                            5

judge. See Lovell, 857 N.W.2d at 242–43. Weaver argues “[t]he perception that

[he] was a bad father to his children is not a permissible sentencing

consideration.” He cites no controlling authority standing for this proposition. His

sole citation is to an unreported case from this court that is factually

distinguishable from the case before us now. See State v. Conrad, No. 12-0670,

2013 WL 93013, at *2 (Iowa Ct. App. Jan. 9, 2013). In Conrad, we considered a

sentencing in which one factor the district court considered was its stated goal of

“keep[ing] [the defendant] away from that child for as long as possible.” Id. Our

holding was not based on the court’s mention of the child but on the court’s

attempt “‘to deliberately lengthen a sentence in an effort to interfere with parole

practices.’”    See id. (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa

1994)); see also State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977).

         It is clear the district court in this case did not make its sentencing decision

with a mind toward separating Weaver’s children from him for as long as possible

because it suspended Weaver’s five-year incarceration term.                We are not

persuaded that the mention of Weaver’s children amounted to the consideration

of an impermissible factor in making a sentencing decision. We affirm the district

court.

                C. Court Costs

         Weaver argues the district court erred in assigning to him the court costs

of a dismissed criminal charge. By statute, court costs are not recoverable from

a defendant if the charge against him is dismissed. See Iowa Code § 815.13.

The State does not contest that the costs were erroneously assigned to Weaver.

Instead, the State argues the issue is not properly before this court.               We
                                            6


disagree.   Although the costs arose from a different cause of action with a

different case number, they were assigned in the sentencing order for the theft

charge. In that sense, the portion of Weaver’s sentence ordering him to pay the

contested costs renders the sentence for the theft charge illegal.4 Weaver may

challenge, and we may correct, an illegal sentence at any time. See State v.

Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

       We find and no party contests that the assignment of the costs of the

driving-while-barred charge constitutes an illegal sentence. We vacate the illegal

part of the sentencing order and remand for entry of a corrected sentencing order

consistent with this ruling.

              D. Defendant’s Pro Se Claims

       Lastly, Weaver filed a pro se appellate brief that may be read to raise

several additional issues. He first suggests the district court’s sentence was the

result of an unspecified “conflict” involving his medical records, his counsel, and

the district court judge. He claims this conflict led to an improper sentencing

decision. We have considered his argument in reaching our conclusion as to the

abuse-of-discretion claim asserted by Weaver’s counsel.



4
  We recently reached a similar conclusion in State v. Jenkins-Wells, No. 14-0432, 2015
WL 3623642, at *1 n.1 (Iowa Ct. App. June 10, 2015). The State argues our conclusion
in Jenkins-Wells was in error, but it cites no authority to demonstrate what error
occurred. The State mischaracterizes our conclusion in Jenkins-Wells as a reliance on
the rule that “an illegal sentence can be challenged at any time.” See State v. Gordon,
732 N.W.2d 41, 43 (Iowa 2007). However, Jenkins-Wells actually involved the fact that
the court costs for the dismissed counts were assigned in the sentencing order for the
charges to which the defendant pleaded guilty. See Jenkins-Wells, 2015 WL 3623642,
at *1. The State is correct insofar as there were other avenues Weaver could have
taken to attack the assignment of these costs, but that fact does not invalidate the claim
before us now.
                                           7


       Next, Weaver appears to claim there was no factual basis to support his

guilty plea, stating he did not steal the camera equipment and did not definitively

know whether it was stolen property. However, Weaver did not move in arrest of

judgment, and we find this claim is not preserved for review.5 See State v.

Martin, 778 N.W.2d 201, 202–03 (Iowa Ct. App. 2009) (“If a defendant does not

file a motion in arrest of judgment, the defendant is precluded from asserting

[factual-basis] challenges on appeal.”).

       Weaver goes on to assert his trial counsel was ineffective.6 He first claims

counsel was ineffective in the plea negotiation process. He asserts he would

have prevailed on the driving-while-barred charge at trial, meaning that a plea

deal dismissing that charge was of no benefit to him. He further claims counsel

was ineffective at the plea hearing because counsel failed to raise the issue of

Weaver’s medical troubles with the court in order to guide the court to a proper

sentence in light of his medical limitations.

       We find the record is sufficient to dispose of all asserted grounds of

ineffective assistance.     See Straw, 709 N.W.2d at 133.            To establish an

ineffective-assistance claim, Weaver must prove by a preponderance of the

evidence both that “(1) his trial counsel failed to perform an essential duty, and




5
   Insofar as Weaver’s pro se brief may be read to insinuate—although it does not
assert—counsel was ineffective for permitting Weaver to plead guilty with no factual
basis, we find counsel had no duty to prevent him from doing so because the record is
clear a factual basis exists. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009)
(“[C]ounsel has no duty to raise an issue that has no merit.”).
6
  We consider the merits of these claims because “[i]neffective-assistance-of-counsel
claims are not bound by traditional error-preservation rules.” See State v. Ondayog, 722
N.W.2d 778, 784 (Iowa 2006).
                                           8

(2) this failure resulted in prejudice.” Id. We find he cannot prove prejudice on

his ineffective-assistance claims.

          In the context of a guilty plea, “to satisfy the prejudice requirement, the

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

errors, he . . . would not have pleaded guilty and would have insisted on going to

trial.”   Id. at 138.   Weaver’s guilty plea afforded him a favorable sentencing

recommendation from the State. The district court adopted the recommendation.

Given this benefit along with the strength of the factual record pertaining to the

theft charge—including Weaver’s own admissions to police—we find there is no

reasonable probability that Weaver would have elected to go to trial.

          As to counsel’s failure to mention Weaver’s medical status at the hearing,

we find no support for the proposition that the district court’s sentence “would

have been different” even if counsel had done so.             See id. at 141 (citing

Strickland v. Washington, 466 U.S. 668, 694 (1984)). During the colloquy, the

court discussed the issue of Weaver’s medical condition and ability to work with

Weaver directly. The court also had the appropriate medical reports before it

when it reached its sentencing determination. The sentencing order accounts for

Weaver’s medical issues by requiring him to engage in “a full-time combination of

employment and study, to the degree reasonably able to do so.” Since the court

expressly considered Weaver’s ability to work and ordered a sentence that

accounts for any medically necessary restrictions, counsel’s failure to speak to

Weaver’s medical status did not result in any prejudice.

          Having also considered all other issues raised, we find Weaver is not

entitled to relief on any of the grounds raised in his pro se brief.
                                         9


      IV. Conclusion

      We find the district court did not abuse its discretion or consider an

impermissible factor in sentencing Weaver. Weaver is not able to establish his

ineffective-assistance claims. We conclude the district court’s assignment of the

costs of a dismissed charge to be an illegal portion of the sentence as to the theft

charge. We vacate the illegal part of the sentencing order and remand for entry

of a corrected order.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
