                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0515
                                Filed April 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ARCHIE LAMAR HUBERT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



       Defendant appeals his conviction and sentence for burglary in the third

degree. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., Tabor, J., and Eisenhauer, S.J.

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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EISENHAUER, S.J.

       Defendant appeals his conviction and sentence for third-degree burglary.

He contends (1) he received ineffective assistance of counsel because his

attorney failed to object to the instruction on aiding and abetting and (2) the

district court abused its discretion in sentencing him.

       I. Background Facts & Proceedings.

       On January 23, 2012, at about 6:15 a.m., Jeffrey Lee was driving to his

job at Willman Construction.     Willman Construction is entirely enclosed by a

fence and was not open to the public at that time. Lee saw a man loading fence

posts in a Dodge Durango parked in an alley behind the company. Lee recorded

the license plate number of the vehicle. The man got into the vehicle and drove

away. A few seconds later, Lee saw a second person come out from inside the

fence and run down the alley in the same direction the vehicle had driven away.

The fence was cut in the area were the Durango was parked. The company kept

fence posts within the security fence, and some of these posts were removed.

       The Dodge Durango was stopped later that day in Rock Island, Illinois.

Archie Hubert was a passenger in the vehicle.1 Hubert told officers he drove

down alleys in Davenport looking for scrap items on his way to Illinois. He stated

he saw the fence posts in the alley behind Willman Construction, thought they

were being thrown out, and put them in his vehicle.        From Hubert’s home,

Willman Construction would not be on his way to Illinois. Hubert stated he saw a

person wearing dark clothes inside the fence, but did not know who it was and

1
 From the license plate number, the Davenport Police Department determined the
Durango was registered to Nicole Ruby, a resident of Davenport. Ruby lived with
Hubert.
                                        3


did not have any interaction with that person. Shortly before he was stopped,

Hubert sold some fence posts to Del’s Metal in Rock Island.

      Hubert was charged with burglary in the third degree, in violation of Iowa

Code section 713.6A(1) (2011), and criminal mischief in the fourth degree, in

violation of section 716.6.   After a trial, with evidence presented as outlined

above, a jury found him guilty of third-degree burglary. Hubert was sentenced to

a term of imprisonment not to exceed five years. He now appeals.

      II. Ineffective Assistance.

      Hubert contends he received ineffective assistance because defense

counsel did not object to the instruction on aiding and abetting. He claims the

instruction was incomplete because it did not include the following paragraphs

found in Iowa Criminal Jury Instruction 200.8:

             The guilt of a person who knowingly aids and abets the
      commission of a crime must be determined only on the facts which
      show the part he has in it, and does not depend upon the degree of
      another person’s guilt.
             If you find the State has proved the defendant directly
      committed the crime, or knowingly “aided and abetted” other
      persons in the commission of the crime, then the defendant is guilty
      of the crime charged.

      If the offense charged involves specific intent, as was the case here, 2 the

following paragraph should also be given:

             The crime charged requires a specific intent. Therefore,
      before you can find the defendant “aided and abetted” the
      commission of the crime, the State must prove the defendant either
      has such specific intent or “aided and abetted” with the knowledge
      the others who directly committed the crime had such specific
      intent. If the defendant did not have the specific intent, or
      knowledge the others had such specific intent, he is not guilty.

2
  For the offense of third-degree burglary, the State must show a defendant had the
specific intent to commit theft. Iowa Code §§ 713.1, .6A.
                                         4



See Iowa Criminal Jury Instruction 200.8.

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Claims of ineffective

assistance are generally preserved for postconviction actions, but when, as here,

the record is sufficient to address the issue on direct appeal, we will rule on the

issue. See State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).

       The State agrees the instruction on aiding and abetting was incomplete. It

asserts, however, even if the instruction was improper, Hubert has not shown he

was prejudiced by his counsel’s failure to object to the instruction. In considering

a claim of ineffective assistance of counsel, we may first consider the second

prong—prejudice resulted to the extent it denied the defendant a fair trial. State

v. Pace, 602 N.W.2d 764, 774 (Iowa 1999). “A defendant establishes prejudice

by showing ‘there is a reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

Id. (citations omitted).

       The language concerning specific intent would have been pertinent if

Hubert claimed he assisted another person in committing the crime, but without

his knowledge of the person’s specific intent. Instead, Hubert denied assisting
                                           5


anyone in committing the offense. His defense was based on his contention the

fence posts were abandoned in the alley.           While he acknowledged seeing

another person inside the fenced-in Willman Construction lot when he took the

fence posts, he denied knowing anything about the person. Thus, Hubert has

failed to show the relevance of the omitted language to his defense, or

demonstrate how he was prejudiced by the improper instruction. He has not

shown the result of the trial would have been different if defense counsel had

objected to the instruction.3

       We conclude Hubert has failed to show he received ineffective assistance

due to counsel’s failure to object to the instruction on aiding and abetting. We

affirm his conviction for third-degree burglary.

       III. Sentence.

       Hubert appeals his sentence. He claims the court abused its discretion

when it stated one of the reasons for the sentence was Hubert’s failure to take

responsibility for the offense. He asserts he has taken responsibility by working

to make payments toward restitution.

       When a sentence is within statutory limits, it is cloaked in a strong

presumption in its favor. State v. Washington, 832 N.W.2d 650, 660 (Iowa 2013).

We will reverse only upon an abuse of discretion or the consideration of


3
  We furthermore find Hubert has not shown he was prejudiced because there was
overwhelming evidence of his guilt. See State v. Tejeda, 677 N.W.2d 744, 755 (Iowa
2004) (finding defendant was not prejudiced by the submission of a superfluous jury
instruction because there was overwheming evidence of his guilt). Hubert told officers
he took the fence posts from the alley behind Willman Construction. His vehicle was
parked beside a cut in the security fence around the company. Hubert sold the stolen
fence posts in Illinois later that same day. The evidence did not support Hubert’s claim
he happened across the fence posts while driving from his home to Illinois because the
alley would not have been on his route.
                                         6

inappropriate matters. Id. There is an abuse of discretion when the court’s

decision is exercised on grounds or for reasons clearly untenable or

unreasonable. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010).

      The district court noted Hubert’s criminal history and his failure to

complete substance abuse treatment. The court stated:

             For those reasons, I believe that Mr. Hubert, in light of his
      record, and in light of the fact that he has totally exhausted the
      community resources, I believe incarceration is the appropriate
      punishment for this offense.
             Somehow or other, Mr. Hubert, we need to get your attention
      that you cannot continue to commit crimes in this community. It
      also troubles me that you have not taken responsibility in any way,
      shape, or form for this offense.

      “[A] defendant’s lack of remorse is highly pertinent to evaluating his need

for rehabilitation and his likelihood of reoffending.” State v. Knight, 701 N.W.2d

83, 88 (Iowa 2005). In sentencing a defendant, a court may properly consider

this factor. Id. The court therefore did not consider an inappropriate matter.

      Hubert claims the court was incorrect in stating he had not taken

responsibility for the offense. Throughout the trial and on appeal Hubert has

continued to deny his criminal involvement. He has asserted he was an innocent

bystander who picked up abandoned fence posts and sold them. The fact he

acknowledged he would have to pay restitution is not an admission he had done

anything wrong. We conclude the district court did not abuse its discretion in

sentencing Hubert.

      AFFIRMED.
