                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1188
                               Filed July 19, 2017


CHRISTOPHER LAPOINTE,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

       Christopher LaPointe appeals the district court’s denial of his application

for postconviction relief. We find LaPointe was not prejudiced by trial counsel’s

failure to object during the victim impact statement, the State made sufficient

arguments in support of the plea agreement, and LaPointe knowingly and

voluntarily waived the use of a presentence investigation during sentencing. We

affirm the district court.

   I. Background Facts and Proceedings

       On December 2, 2014, LaPointe pled guilty to one count of second-degree

burglary, in violation of Iowa Code section 713.5 (2014), and one count of

third-degree sexual abuse, in violation of Iowa Code section 709.4. The State

agreed to recommend concurrent ten-year sentences in exchange for LaPointe’s

guilty plea. Sentencing occurred immediately after the guilty plea was accepted,

and LaPointe waived the use of a presentence investigation.         The colloquy

regarding the presentence investigation stated:

              THE COURT: In addition, if sentencing was set out at a later
       time, I am going to order today a presentence investigation report
       be done which is a background report about you. That report could
       contain favorable information to you.
              However, if you are sentenced today, I will not have that
       report available for my use. Do you understand that?
              THE DEFENDANT: Yes, Your Honor.
              THE COURT: Do you wish to waive the use of the
       presentence investigation report so you can be sentenced today?
              THE DEFENDANT: Yes, Your Honor.

       At sentencing the State recommended concurrent ten-year sentences.

C.M., the victim, gave a victim impact statement pursuant to Iowa Code section

915.21. In part, C.M. stated:
                                            3


               There needs to be consequences to his action. I feel the
       defendant should be incarcerated for more than 10 years, not only
       for the burglary and the sexual abuse, but for stealing my
       innocence, trust in humanity, confidence, strength, fearlessness,
       but especially for the love that I had for life.
               More importantly, has he done this before? Could I truly be
       the only one? Has his actions affected other women? I don’t know
       because of his persuasive abilities to get a room key that wasn’t
       his, to sway a maintenance man to unlock a safety latch, he has the
       capability of doing anything. For my safety and the safety of other
       women that one day may live or work near him, I ask you please
       put him on the sexual offenders list for a lifetime.

The district court imposed two consecutive ten-year sentences.1

       On March 25, 2015, LaPointe filed a pro se motion for reconsideration, but

the district court made no modifications.           LaPointe filed an application for

postconviction relief on July 31.         A hearing was held June 2, 2016, and

LaPointe’s application was denied June 30. LaPointe now appeals.

    II. Standard of Review

       “The standard of review on appeal from the denial of postconviction relief

is for errors at law.” McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995).

However, “[w]hen there is an alleged denial of constitutional rights, . . . we make

our own evaluation of the totality of the circumstances in a de novo review.” Id.

Claims of ineffective assistance of counsel are reviewed de novo. Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective

assistance of counsel, the [defendant] must demonstrate both ineffective

assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it can be

decided on that ground alone without deciding whether the attorney performed

1
 The district court made a substantial record at the time of the entry of the pleas that it
was not bound by any plea agreement and specifically stated it could impose
consecutive sentences of up to twenty years. LaPointe acknowledged this possibility
and choose to go forward.
                                          4

deficiently.”   Id.   Both elements must be proved by a preponderance of the

evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).

    III. Victim Impact Statement

       LaPointe claims trial counsel was ineffective as he failed to object to

portions of C.M.’s victim impact statement. C.M. stated “I feel the defendant

should be incarcerated for more than ten years” and questioned if LaPointe had

committed similar offenses in the past.2 Our supreme court has held even when

a victim statement is improper, prejudice does not automatically follow.         See

State v. Sailer, 587 N.W.2d 756, 764 (Iowa 1998). Additionally, “we trust that our

district courts, when weighing such statements as part of the sentencing

determination, will filter out improper or irrelevant evidence.” Id. The defendant

is required to make an affirmative showing the district court relied on improper

evidence to overcome the presumption. State v. Dake, 545 N.W.2d 895, 897

(Iowa Ct. App. 1996).

       In order to find prejudice, we must find the district court considered

improper statements. LaPointe claims the district court did consider what he

asserts were the improper portions of the statement, and if the district court had

not considered those portions, the outcome would have been different.

       During the sentencing the district court stated in part:

             This was a calculated and violent offense when you look at
       the impact on this victim of the sexual assault. I don’t know what
       happened from the time all of these people sent letters telling me
       about your high moral character and what happened on April 11th


2
 The State claims LaPointe preserved error only regarding the statement concerning the
period of incarceration. We find LaPointe preserved error as to both challenged
statements.
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      of 2014, but those clearly are not talking about the same type of
      individual.
             The dramatic and long-lasting impact these two offenses
      have had on the victim of these offenses is incalculable. Her
      statement here today of the longstanding impact, the devastating
      impact on her employment which required frequent travel and
      staying in hotels and her fear of doing that now cannot be
      overlooked.
             The court, in determining an appropriate sentence, needs to
      determine multiple factors as set forth in the Iowa Code and some
      of those include protection of the community as well as looking at
      your rehabilitation. It is clear no matter what I do today that you at
      some point will be a member of the community and the court needs
      to look towards rehabilitation of you as well.
             But in light of what I find to be very serious offenses, count II
      especially, a violent offense and the impact on the community and
      the need to protect the community, quite frankly, this happened at a
      hotel, and quite frankly, a random victim to whom you had no
      relationship to and I find that very concerning.

(Emphasis added.)     LaPointe claims the emphasized portions of the district

court’s statements show clear reliance on C.M.’s statement, overcoming the

presumption and showing prejudice. We disagree. C.M. stated:

              More importantly, has he done this before? Could I truly be
      the only one? Has his actions affected other women? I don’t know
      because of his persuasive abilities to get a room key that wasn’t
      his, to sway a maintenance man to unlock a safety latch, he has the
      capability of doing anything. For my safety and the safety of other
      women that one day may live or work near him, I ask you please
      put him on the sexual offenders list for a lifetime.

LaPointe specifically draws a connection between C.M.’s belief there may be

other victims with the district court’s statements regarding C.M. being a “random

victim.” The district court’s reference to a random victim refers specifically to

C.M., with whom LaPointe had only a few casual meetings, and is not an indirect

reference to the possibility of other victims. LaPointe also attempts to draw a

connection between the district court’s statement LaPointe would be returned to

the community at some point and C.M.’s statement she felt “the defendant should
                                          6


be incarcerated for more than ten years.” Again, we disagree. The district court

is simply referencing the fact the sentence would be at most twenty years, not a

life sentence. LaPointe draws no specific connection between C.M.’s statement

and the first emphasized portion regarding his moral character. We find the

district court was referring to the discrepancy between letters praising his moral

character and the violent and calculated crimes he committed. Finally, LaPointe

notes the district court did not specifically indicate it was not considering the

statements from C.M. However, as we have already stated, “we trust that our

district courts . . . will filter out improper or irrelevant evidence.” See Sailer, 587

N.W.2d at 764.

       Even had trial counsel objected, and the presumption the district court

filtered out improper evidence was removed, the evidence is insufficient to show

the district court relied on improper statements.           The district court gave

substantial reasons for its sentence and many of those reasons were

independent of the victim’s statements. We find LaPointe is unable to offer clear

evidence the district court relied on any improper statements by C.M. and

therefore, we find LaPointe was not prejudiced.

   IV. Plea Agreement

       LaPointe also claims the State did not do enough to commend the plea

agreement’s sentencing recommendation to the district court, and trial counsel’s

failure to object constituted ineffective assistance of counsel. LaPointe directs us

to our decision in State v. Chest, where we held the State was required to “make

a meaningful recommendation consistent with both the terms of the plea

agreement and the established standard of a recommendation.” No. 14–1937,
                                        7


2015 WL 5970339, at *1 (Iowa Ct. App. Oct. 14, 2015).               A meaningful

recommendation of a plea agreement requires “the prosecutor to present the

recommended sentence with his or her approval, to commend the sentence to

the court, and to otherwise indicate to the court that the recommended sentence

is supported by the State and worthy of the court’s acceptance.”         State v.

Horness, 600 N.W.2d 294, 297 (Iowa 1999).

       At the combined plea and sentencing hearing the prosecution stated,

“[o]ur agreement, Your Honor, is that the defendant would be sentenced to a

period of incarceration not to exceed ten years on each offense and that those

sentences would run concurrent to each other.” Later, before the victim impact

statement, the prosecution also stated, “I don’t have any additional record to

make. I stand by our plea agreement.” LaPointe claims this did not sufficiently

recommend the plea agreement to the court.

       Our supreme court has held the State may not “make sentencing

recommendations with a wink and a nod.” State v. Bearse, 748 N.W.2d 211, 218

(Iowa 2008). We find the State properly recommended the agreement to the

district court.   The prosecution recited the agreement and also made an

affirmative statement standing by the agreement.      The State fulfilled its duty

pursuant to our case law. Any objection by LaPointe’s counsel would have been

meritless, and therefore, counsel was not ineffective. See id. at 215.

   V. Presentence Investigation

       Finally, LaPointe claims his waiver of the presentence investigation report

was not knowing and voluntary, and trial counsel was ineffective for failing to

properly advise him of the purpose or usefulness of the report.          LaPointe
                                           8


concedes “the information presented to the court at sentencing does overlap with

what is contained in the [report]” but insists “the report provides a measure of

detail absent from the documents made available.” LaPointe also claims the

source of the information, a neutral party, would have convinced the district court

not to impose consecutive sentences.

       The district court stated it considered LaPointe’s actions “a calculated and

violent offense,” as well as two clear and distinct offenses with “longstanding

impact.” The district court received a variety of evaluations, letters of reference,

and LaPointe’s own statement. However, the district court stated, “[T]he court

has read the packet of information and all of the letters that have been submitted

on your behalf talking about your respectability in the community and your good

and high moral character. That just does not comport with what happened here.”

       LaPointe must show “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” See Strickland v. Washington, 466 U.S. 668, 669 (1984). The small

amount of detail contained in the report is not enough to make this showing and

overcome the district court’s stated reasons for the sentence. We also find that

LaPointe has failed to show that his waiver of the use of the presentence report

was not voluntary. The district court advised LaPointe that a report could be

ordered but that sentencing would be delayed. LaPointe requested immediate

sentencing and waived his right to the presentence investigation. We find there

is no prejudice and affirm the district court.

       AFFIRMED.
