               IN THE SUPREME COURT OF IOWA
                              No. 13–1103

                          Filed March 6, 2015


STATE OF IOWA,

      Appellee,

vs.

SHAUNTA ROSE HOPKINS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Glenn E. Pille,

Judge.



      A criminal defendant challenges the judgment and sentence

entered at a resentencing hearing, claiming abuse of discretion by the

district court and ineffective assistance of counsel. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J.

Japuntich, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Brianna Shriver, Student Legal Intern, John P.

Sarcone, County Attorney, and Stephanie L. Cox, Assistant County

Attorney, for appellee.
                                      2

CADY, Chief Justice.

      In this appeal from a resentencing for numerous drug convictions

following the reversal of one conviction in a prior appeal, we consider

claims of abuse of discretion by the sentencing court and ineffective

assistance of trial counsel for failure to object to the use of the original

presentence investigation report in resentencing.       On our review, we

affirm the sentence of the district court.

      I. Background Facts and Proceedings.

      Shaunta Hopkins and her boyfriend, along with four other

individuals, were arrested following a multiple-location drug raid by the

Des Moines Police Department.          The State charged Hopkins with

assorted drug offenses.     Her case proceeded to trial with one other

codefendant in October 2011. Following a jury trial, Hopkins was found

guilty of six crimes: conspiracy to deliver a controlled substance (crack

cocaine), a class “B” felony under Iowa Code section 124.401(1)(b)(3)

(2011); possession of a controlled substance (crack cocaine), a class “C”

felony under section 124.401(1)(c)(3); conspiracy to deliver a simulated

controlled substance (ecstasy), a class “C” felony under section

124.401(1)(c)(8); possession of a controlled substance with intent to

deliver (ecstasy), a class “C” felony under section 124.401(1)(c)(8); failure

to possess a tax stamp, a class “D” felony under sections 453B.3 and

453B.12; and possession of a controlled substance (marijuana), a serious

misdemeanor under section 124.401(5).          The jury found Hopkins’s

codefendant not guilty on all charges.

      At the sentencing hearing, the court reviewed a presentence

investigation (PSI) report, which included information on her educational

and employment history, criminal history, family support, history of

substance abuse and relationships, and a sentencing recommendation.
                                      3

Hopkins was twenty-three years of age. The court sentenced Hopkins to

serve   one    twenty-five-year   sentence   with   a   one-third   mandatory

minimum, two ten-year sentences with one-third mandatory minimums,

two five-year sentences, and a six-month sentence.          All six sentences

were ordered to run concurrently. Hopkins appealed and began serving

her sentence of incarceration.

        During her imprisonment, Hopkins completed various classes,

earned her high school diploma, and earned a career readiness

certificate.   Hopkins also entered a treatment program for substance

abuse. She was employed in the prison kitchen and laundry room and

supervised other inmates in solitary confinement.

        On November 15, 2012, the court of appeals reversed Hopkins’s

conviction and sentence for the class “C” felony, conspiracy to deliver a

controlled substance (ecstasy) in violation of section 124.401(1)(c)(8). All

other convictions were affirmed. State v. Hopkins, No. 11–2083, 2012 WL

5537213, at *3 (Iowa Ct. App. Nov. 15, 2012).

        Following the appeal, Hopkins sought and eventually received a

resentencing hearing before the district court on the five convictions that

were not reversed. At the hearing, the State and Hopkins informed the

court they had reviewed the PSI report from the December 2011

sentencing hearing and did not know of any corrections or deletions to be

made.      A new PSI report was not prepared.              Instead, Hopkins

supplemented the old PSI report by submitting documents and evidence

at the sentencing hearing, including the classes she had taken, her

rehabilitative efforts while in prison, and the support system that would

be in place should she be released into the community.              The State

requested the court impose the same sentence as originally imposed for
                                     4

the five convictions that were not reversed on appeal. Hopkins requested

a deferred judgment or a suspended sentence on all convictions.

      The district court imposed five concurrent sentences: one twenty-

five-year sentence, two ten-year sentences, one five-year sentence, and

one six-month sentence, with one-third mandatory minimums for the

three longer sentences. The only difference between the new sentence

and the original sentence was that the district court did not impose one

of the five-year sentences as a result of the court of appeals’ reversal of

the single conviction. The new sentence otherwise was the same as the

original sentence.

      Hopkins appealed.       She claims the district court abused its

discretion in imposing the same sentences of incarceration for the five

convictions. She also claims her attorney rendered ineffective assistance

of counsel by failing to object to the use of her original PSI report for the

resentencing.   The court of appeals affirmed the new sentence.          We

granted further review.

      II. Standard of Review.

      We review sentencing decisions for abuse of discretion or defect in

the sentencing procedure.     State v. Thompson, 856 N.W.2d 915, 918

(Iowa 2014). “An abuse of discretion will only be found when a court acts

on grounds clearly untenable or to an extent clearly unreasonable.”

State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006).               We give

sentencing decisions by a trial court a strong presumption in their favor.

State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).

      Due to their constitutional implications, we review ineffective-

assistance-of-counsel claims de novo. State v. Velez, 829 N.W.2d 572,

576 (Iowa 2013).     Counsel is presumed to have acted competently.

Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
                                    5

      III. Analysis.

      When one of several convictions are reversed on appeal, the

judgment and sentence for the conviction that was reversed can be

severed and the remaining sentence for the convictions that were not

reversed can stand or the case can be remanded for resentencing. See

State v. Keutla, 798 N.W.2d 731, 735 (Iowa 2011) (“Generally, in criminal

cases, where an improper or illegal sentence is severable from the valid

portion of the sentence, we may vacate the invalid part without

disturbing the rest of the sentence. We are not, however, required to do

so and may remand for resentencing.” (Citation omitted.)). In this case,

the court of appeals did not direct a specific outcome, and the parties

sought resentencing on the remaining convictions before the district

court without objection. Accordingly, we proceed to address the claims

of error based on the new sentence imposed for the five convictions not

disturbed on appeal.

      A. Abuse of Discretion. When a sentence imposed by a district

court falls within the statutory parameters, we presume it is valid and

only overturn for an abuse of discretion or reliance on inappropriate

factors.   State v. Washington, 832 N.W.2d 650, 660 (Iowa 2013).      “To

overcome the presumption [of validity], we have required an affirmative

showing the sentencing court relied on improper evidence.” Id. On our

review, we do not decide the sentence we would have imposed, but

whether the sentence imposed was unreasonable. State v. Formaro, 638

N.W.2d 720, 725 (Iowa 2002) (“[Judicial decisions] deal in differing

shades of gray, and discretion is needed to give the necessary latitude to

the decision-making process.     This inherent latitude in the process

properly limits our review.”).
                                          6

       Hopkins claims the district court failed to properly consider her

age, her rehabilitation while incarcerated, and the impact of the

dismissed charge on her culpability, while placing undue weight on the

nature of her convictions. 1 We have said that the relevant factors when

imposing sentence include “ ‘the nature of the offense, the attending

circumstances, defendant’s age, character and propensities and chances

of [the defendant’s] reform.’ ” State v. August, 589 N.W.2d 740, 744 (Iowa

1999) (quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)).

The legislature has also specified factors including:

              a. The age of the defendant.
              b. The defendant’s prior record of convictions and
       prior record of deferments of judgment if any.
              c. The defendant’s employment circumstances.
              d. The defendant’s family circumstances.
            e. The defendant’s mental health and substance
       abuse history and treatment options available in the
       community and the correctional system.
              f. The nature of the offense committed.
              g. Such other factors as are appropriate.




       1In    particular, Hopkins emphasizes that her age, twenty-four at the time of
resentencing, means she had not finished developing mentally or emotionally and
points to a federal sentencing case to support the consideration of rehabilitation in
resentencing. See Pepper v. United States, 562 U.S. 476, ___, 131 S. Ct. 1229, 1236,
179 L. Ed. 2d 196, 208 (2011). While age is a sentencing factor, we have limited our
age-based diminished culpability cases to juveniles. See State v. Lyle, 854 N.W.2d 378,
403 (Iowa 2014) (“Furthermore, our holding today has no application to sentencing laws
affecting adult offenders.”).    As for consideration of rehabilitation in sentencing,
Hopkins’s sentence is distinct from the sentencing in Pepper because (1) the federal
sentencing guidelines, a highly individualized sentencing scheme of ranges, downward
variances, and enhancements, were used to establish the defendant’s sentence; (2)
Pepper had served his period of incarceration, been released from prison, and had since
built a life in the community; and (3) the U.S. Supreme Court simply permitted Pepper’s
postsentence rehabilitation to be considered as a factor in applying a downward
variance within the federal sentencing guidelines during resentencing. Pepper, 562 U.S.
at ___, 131 S. Ct. at 1236, 1238, 1249, 179 L. Ed. 2d at 208, 210, 222–23.
                                     7

Iowa Code § 907.5(1) (2013).      Postconviction rehabilitation efforts are

included among the other appropriate factors under section 907.5(1)(g)

for courts to consider in imposing sentence.         See id. § 907.5(1)(g).

Rehabilitation is a fundamental goal of sentencing.     See Formaro, 638

N.W.2d. at 724. Thus, it is proper to consider at resentencing a change

in circumstances that occurs between the time of the original sentence

and the time of the resentencing. These circumstances not only include

all the circumstances supporting rehabilitation, but also a reduction of

the number of convictions associated with the resentencing. See State v.

Harrington, 805 N.W.2d 391, 394–96 (Iowa 2011) (explaining and

adopting an aggregate approach to sentencing that encourages a

consideration of changed circumstances on resentencing).         Although

circumstances relating to rehabilitation tend to mitigate punishments,

rehabilitation efforts remain only one of many relevant factors to consider

at resentencing. See, e.g., State v. Ragland, 836 N.W.2d 107, 121 (Iowa

2013) (adopting the U.S. Supreme Court requirement from Graham v.

Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 2030, 176 L. Ed. 2d 825, 845–

46 (2010), that “ ‘demonstrated maturity and rehabilitation’ ” be

considered in juvenile resentencing hearings). Resentencing following an

appeal does not necessarily require a different sentence for those

convictions not reversed on appeal.         The new circumstances are

important, but not dispositive.

      When considering whether a court abuses its discretion by

imposing a sentence of incarceration, we recognize the nature of the

offense alone is not determinative. State v. Dvorsky, 322 N.W.2d 62, 67

(Iowa 1982).   On the other hand, the seriousness and gravity of the

offense is an important factor. State v. Pappas, 337 N.W.2d 490, 495

(Iowa 1983). In the end, a court makes each sentencing decision on an
                                      8

individual basis and seeks to fit the particular person affected. State v.

McKeever, 276 N.W.2d 385, 387 (Iowa 1979).

      At the resentencing hearing in this case, the court acknowledged

the case only dealt with five convictions, not six.        Thus, contrary to

Hopkins’s   claim,   the   court   necessarily   considered   her   claim   at

resentencing that she was less culpable. The court also acknowledged

Hopkins’s “virtually nonexistent” criminal history.        The court further

acknowledged her educational history and applauded the positive

changes she had made while incarcerated since her first sentencing. The

court then went on to express concerns over both the nature and the

multiplicity of her offenses.      While her criminal conduct no longer

included conspiring to deliver ecstasy, Hopkins’s criminal drug activity

otherwise remained unchanged. Based on all the circumstances existing

at the time, the court then “impose[d] the same sentence” as the initial

sentencing court with the exception of the sentence for the dismissed

count. The sentencing order of the court stated:

      Granting probation in this matter is denied because
      probation would not provide reasonable protection of the
      public and maximum opportunity for rehabilitation of
      defendant. The Court has further considered the age of the
      defendant, as well as defendant’s prior criminal record, and
      that probation would lessen the seriousness of the offense.

Overall, we cannot conclude the district court abused its discretion at

resentencing.   The evidence of Hopkins’s rehabilitation was not so

overwhelming as to render the imposition of the statutory sentence

untenable or clearly unreasonable.        Specifically, the court did not rely

only on the nature of the crimes in determining sentence, but considered

all the evidence presented. We find the sentencing court did not abuse

its discretion in imposing the sentence.
                                      9

      B. Ineffective Assistance of Counsel.          Generally, we do not

address claims of effectiveness of counsel on direct appeal. See State v.

Ondayog, 722 N.W.2d 778, 786 (Iowa 2006) (“This case illustrates why

we rarely address ineffective-assistance claims on direct appeal and

instead preserve such claims for postconviction relief.”). We will consider

the merits of an ineffective-assistance claim on direct appeal only if the

record is adequate to decide the issue. State v. Doggett, 687 N.W.2d 97,

100 (Iowa 2004). Normally, cases involving issues of trial strategy and

tactical decisions require postconviction proceedings to develop the

record adequately.     Cf. Ondayog, 722 N.W.2d at 787 (providing an

opportunity for counsel to testify to explain his actions).

      Hopkins claims her counsel was ineffective for failing to object to

the court’s use of the PSI report that was created for her initial

sentencing hearing eighteen months earlier at the resentencing hearing.

She argues the eighteen months that passed between the two sentencing

hearings rendered the PSI report outdated and prevented relevant

information from being considered by the author of the report.            This

information concerned courses she took while in prison, the high school

diploma she earned, and the career training she completed.           Although

Hopkins’s counsel submitted this evidence to the court at the

resentencing hearing and urged the court to consider it in mitigation of

punishment,     Hopkins    believes   it   would    have      resulted   in   a

recommendation of probation if a new PSI report had been prepared.

      To prevail on an ineffective-assistance claim, Hopkins must prove

both a failure of essential duty by her counsel and resulting prejudice to

her. State v. Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010). Both the

failure and the prejudice must be proven by a preponderance of the

evidence. State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013).
                                    10

      There is no statutory requirement for a district court to order a

new PSI report on resentencing.      See Iowa Code § 901.2 (limiting an

order for a PSI report “[u]pon a plea of guilty, a verdict of guilty, or a

special verdict”).   At the same time, there is no statutory prohibition

against ordering an updated PSI report. Moreover, an updated PSI report

may be a useful tool for resentencing, and the decision whether to

update the PSI report would rest in the sound discretion of the court.

Yet, we recognize that the decision by defense counsel to request a new

report for resentencing may be tactical.

      The PSI report not only includes relevant information concerning

sentencing, but a sentencing recommendation. See Iowa Code §§ 901.2–

.3 (describing the purpose and requirements of PSI reports). Thus, the

defendant might benefit from an updated report if it included a

resentencing recommendation favorable to the defendant. However, the

defendant might not benefit from an updated report if it included an

unfavorable recommendation.      The tactical decision rests primarily on

the ability to predict whether an updated report might be helpful. As this

case illustrates, defense counsel can otherwise present the new

sentencing information independent of updating the PSI report. Yet the

tactical decision to request an updated report would at least require an

assessment of the value or detriment of the update.         Thus, defense

counsel would have a duty to make an assessment. On this record, it is

unknown if this assessment occurred.

      If the absence of a request to update the PSI report was a tactical

decision or strategy, the record needs further development to show

whether such strategy was reasonable under prevailing professional

norms for the first prong of our ineffective-assistance claim analysis. See

State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012). Even should Hopkins
                                    11

establish a failure of duty by her counsel, she still must show that “ ‘the

outcome of the [sentencing] proceeding would have been different’ ” had

the error not occurred.    State v. Fannon, 799 N.W.2d 515, 523 (Iowa

2011) (alteration in original) (quoting State v. Horness, 600 N.W.2d 294,

300–01 (Iowa 1999)).

      Consequently, we do not believe the record is adequate to

determine if trial counsel rendered ineffective assistance by failing to

request an updated PSI report. Additionally, the record is not adequate

to determine if the absence of an updated PSI report was prejudicial.

Although a sentencing court is not bound to follow a sentencing

recommendation by a department of correctional services officer, the

recommendation is a factor that could influence the sentencing decision.

See State v. Grgurich, 253 N.W.2d 605, 606 (Iowa 1977) (finding a

recommendation in a PSI report is not binding on the court).

      IV. Conclusion.

      We conclude the district court did not abuse its discretion in

imposing sentence.      We decline to address the claim of ineffective

assistance of counsel on direct appeal.       Accordingly, we affirm the

sentence of the district court.

      AFFIRMED.
