                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0206
                              Filed June 7, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MITCHELL SCOTT GAHAGAN,
     Defendant-Appellant.
________________________________________________________________


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

trial) and Nancy S. Tabor (contempt and sentencing), Judges.



      The defendant appeals from his conviction and sentence for failure to affix

a drug tax stamp. CONVICTION AFFIRMED; SENTENCE REVERSED AND

REMANDED.




      Leah D. Patton of Puryear Law P.C., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ. Tabor, J.,

takes no part.
                                       2


POTTERFIELD, Judge.

       Mitchell Gahagan appeals from his conviction and sentence for failure to

affix a drug tax stamp, following a jury trial, and from the court’s finding of

contempt. Gahagan raises multiple claims of ineffective assistance; he maintains

trial counsel was ineffective for failing to (1) object when the State recalled a

witness, (2) move for judgment of acquittal when the State rested, and (3) file a

writ of certiorari to challenge the court’s finding of contempt. Additionally, he

maintains the district court abused its discretion when sentencing him, claiming

the court (1) considered an improper sentencing factor, namely, pending

charges; and (2) wrongly refused to allow defense witnesses to make statements

at the hearing.

I. Background Facts and Proceedings.

       On November 23, 2013, Davenport police responded to a 911 call made

by Gahagan’s girlfriend alleging a domestic disturbance at Gahagan’s residence.

Based on comments made by the girlfriend to the officers after they arrived on

the scene, the officers obtained a search warrant to search for drugs in

Gahagan’s home and vehicle. During the search, officers located two plastic

bags containing marijuana underneath Gahagan’s mattress. Another plastic bag

of marijuana and a marijuana cigar were found beside a tote in Gahagan’s

bedroom. When searching Gahagan’s vehicle, officers located another plastic

bag containing marijuana, a scale with marijuana residue on it, and a handgun.
                                              3


       On January 3, 2014, Gahagan was charged with failure to affix a drug tax

stamp, in violation of Iowa Code section 453B.12 (2013).1

       A jury trial commenced on September 28, 2015, in case FECR358471.

The State called Detective Janet Martin; she testified she was the evidence

collection officer at the scene on November 23, 2013, meaning she “collect[ed]

everything that was located at the search warrant.” During her testimony, a

number of photos were admitted depicting the marijuana (and its packaging) that

were located in Gahagan’s home and vehicle and ultimately seized.                     Martin

testified the four packages of marijuana had net weights of 26.61 grams, 34.63

grams, 26.50 grams, and 10.86 grams (for a total net weight of 98.6 grams).

Additionally, the State introduced into evidence the actual “plastic grocery sack

(white)”, “baggie,” and “plastic grocery sack (grey)” that had contained the

marijuana. After the State finished its questions of Detective Martin, defense

counsel cross-examined her. The State then called two other detectives before

recalling Detective Martin in its case in chief. When she was back on the stand,

the following exchange occurred between the prosecutor and the detective:

              Q. Detective Martin, there was one topic that I forgot to
       speak to you about. With respect to State’s Exhibit Number 3, the
       marijuana blunt that was taken off of that purple tote in Mr.
       Gahagan’s bedroom, Exhibits 4, 5 and 6, and which would be the
       two Exhibits of marijuana behind the bed and the tote and then the
       Exhibit 19 being the marijuana taken from the center console of his
       vehicle, did you look to see if there was any drug tax stamp affixed
       to any packaging? A. Yes I did.
              Q. Was there any drug tax stamp affixed to the packaging?
       A. No, there was not.

1
  Gahagan was also charged with five other crimes; one charge was severed, the jury
returned not guilty verdicts on two others, and the district court declared a mistrial on the
final two after the jury was unable to reach a verdict. Only count IV, failure to affix a drug
tax stamp, is at issue in this appeal.
                                            4


                   Q. In the State of Iowa what would be the triggering point
          that would require an individual to purchase a drug tax stamp and
          affix it to marijuana? A. If someone possessed over 42.5 grams of
          marijuana.
                   Q. If you look at the laboratory report, was Mr. Gahagan—
          the quantity of marijuana that was taken in this investigation well in
          excess of the 42.5 grams? A. Yes it was.
                   PROSECUTOR: Your Honor, may the record reflect I’m
          showing counsel a demonstrative exhibit.
                   THE COURT: It’s just demonstrative.
                   (A discussion was held off the record at this time.)
                   PROSECUTOR: Your Honor, may I approach the witness?
                   THE COURT: You may.
                   Q. Detective Martin, I’m handing you very simply what I’m
          designating as a demonstrative exhibit, do you recognize that
          exhibit? A. Yes I do.
                   Q. Describe very simply what that demonstrative exhibit
          consists of? A. It has photographs of what the actual drug tax
          stamps should look like for various controlled substances.
                   Q. In this particular case is there a drug tax stamp on that
          placard for marijuana? A. Yes, there is.
                   PROSECUTOR: May Detective Martin show the jury what
          the drug tax stamp would look like for marijuana?
                   THE COURT: She may.
                   THE WITNESS: It would be this one on the left for
          marijuana.

          On October 2, the jury found Gahagan guilty of failing to affix a drug tax

stamp. The same day, the district court filed an order scheduling sentencing for

November 25.         The order required Gahagan to “report IN PERSON to the

Department of Correctional Services (DCS) . . . following the entry of this order”

in order to cooperate in the preparation of the presentence investigation (PSI)

report.

          On November 25, at the hearing originally scheduled for sentencing, the

court noted the PSI report had not been completed. The State indicated:

          As has been Mr. Gahagan’s practice in the past with various cases
          that he’s been charged with, he tends to believe that he doesn’t
          have to follow deadlines or meet obligations that have been set
          upon him. We have Kim Krandall from the Department of
                                         5


      Corrections and I would like for him to describe to the Court
      essentially what we got by way of Mr. Gahagan’s lack of
      cooperation to meet with him so that he can prepare the pre-
      sentence investigation report.

Probation Officer Krandall then made the following oral report to the court:

      Initially after [Gahagan was found] guilty in this matter, the first
      probably week and a half I had a hard time getting him tracked
      down, I wasn’t given an accurate phone number. After I got in
      touch with him, actually he got in touch with me, he came in to
      pick[] up his paperwork and we set an appointment for November
      the 9th. He came in for that appointment, he had his one year old
      baby with him and did not finish the paperwork. I cannot do an
      interview without the paper work and a small child.
               We set an appointment for November the 12th, he called me
      on the 12th to say he didn’t have a ride. We reset the appointment
      for the 14th. He called me on the 13th to say he had family in town
      to see the baby and I asked him if there was someone to get him
      down here and watch the child and said there wasn’t and reset the
      appointment for the 16th which was a week ago Monday and he
      finally did make it in on the 16th, however, that did not give me time
      to get the report done in time for the sentencing.

      Gahagan responded that he “called them that day I got found guilty and

they had no idea what was going on, they asked me to get some information

from Court.” He claimed he “didn’t get any paperwork, I was trying to help that

[lady] out. She didn’t get any information, she didn’t get back to me that day and

I called in the first morning, she didn’t have any information and finally [defense

counsel] called me and gave me Kim’s number.” When the court asked him why

he had failed to make his scheduled appointments, Gahagan stated, “I recently

lost my license and I have a one year old daughter and I’m watching her, it’s

been really hard for me to find rides and it’s difficult for me to get my ride.” The

prosecutor clarified that the child’s mother actually had custody of the child, but

“she’s very good about allowing [Gahagan] to see the child.”
                                         6


         The court then found Gahagan in contempt “based on [his] lack of

cooperation with the preparing of the PSI” and sentenced him to “one day in the

Scott County Jail with mittimus to issue immediately.”

         Shortly thereafter, Gahagan entered guilty pleas in another Scott County

case (FECR370741). Gahagan pled guilty to one count of possession with intent

to deliver (marijuana) and two counts of unlawful possession of a prescription

drug.2

         Sentencing for both cases was scheduled for January 28, 2016.

         At the sentencing hearing, the State recommended the court sentence

Gahagan to a term of incarceration not to exceed five years for his failure-to-affix

conviction and a total term of incarceration not to exceed five years for the

convictions in FECR370741. The State asked the court to order the sentences

for the two separate cases to be served consecutively. Defense counsel asked

the court to grant Gahagan probation. She also asked that Gahagan’s girlfriend,

mother, and father be allowed to testify on his behalf; she indicated they would

speak about how good of a father Gahagan was to his young daughter, his

history with addiction to marijuana, and his mental health struggles. The court

responded, “The presentence investigation report includes history about his

mental health that you did not correct, and it includes what the issues are and his

diagnosis, so I have that information before me to consider.” The court asked the

prosecutor if she had any objection to the family members speaking, and the

prosecutor indicated she would “leave that up to the Court.”


2
 Gahagan’s appeal involving case FECR370714 is also being filed today. See State v.
Gahagan, No. 16-0209, 2017 WL ______, at *1 (Iowa Ct. App. June 7, 2017).
                                         7




              THE COURT: Well, my concern is that the State has a right
      to know what they’re gonna say and to rebut it, and they don’t have
      that information available. They are not victims. Only victims are
      allowed by statute to speak.
              DEFENSE COUNSEL: I think [Gahagan’s mother] wrote a
      letter. I’d be happy to show it to Ms. Cunningham. I’ve not read it.
              THE COURT: Well, if it doesn’t contain any different
      information than is contained in the PSI, it would [not] be helpful.
      Ma’am, if you can’t keep yourself from talking and make comments
      and making gestures to me, then I’m gonna ask you to leave the
      courtroom, please. I cannot consider what you say statutorily
      unless the county attorney agrees to it. Do you understand that?
              AUDIENCE MEMBER: I understand.
               THE COURT: I understand that you’re a family member and
      this is difficult on you, and I take no fault and I show no fault toward
      any of the family members. This is not your fault. It’s his
      responsibility to provide all the information that’s necessary to the
      probation officer and if he has not done that, that’s on him, not on
      you, and I can’t consider—you can talk, but I cannot consider
      anything you say because it’s not statutorily allowed, so if you
      would like to talk—

The family members were not allowed to speak on Gahagan’s behalf before the

court imposed the sentences, stating in part:

              You had—it doesn’t matter that it was two years old. You
      committed another crime and admitted to committing another crime
      while you still had other charges pending and cases pending.
      You’ve been rearrested since these. Now, they’re allegations, but
      you still have been arrested, and that is not something that’s—
      that’s something that’s in violation of your pretrial release.
              You have a long history for someone so young, 31 years old,
      long criminal history that spans many, many years and takes up at
      least four and a half or five pages of the presentence investigation
      reports. Because of your pending charges and because of your
      past volatile behavior, you don’t qualify for any kind of residential
      treatment facility in the community. You have very little work
      history.
              ....
              This is a case where I don’t believe that probation is
      appropriate, and I’m going to sentence you [accordingly].
              ....
              In FECR 358441, it is my sentence that you are sentenced
      to an indeterminate term of confinement not to exceed five years,
                                           8


       pay a fine of $750 plus costs. Under File No. FECR 370741 you’re
       sentenced under Count 1 to an indeterminate term of confinement
       not to exceed five years, a fine of $750. Under Count 4, you’re
       sentenced to an indeterminate term not to exceed one year in the
       Scott County Jail, pay a fine of $315. Under Count 5 an
       indeterminate term of confinement in the Scott County Jail for one
       year and pay a fine of $315. I will allow the sentences under
       370741 to be served concurrent with each other, but I do think that,
       based on your history, that there is aggravating circumstances and
       it should be that the sentence in the other—under—in both cases
       should run consecutive to each other.

Gahagan appeals.

II. Discussion.

       A. Ineffective Assistance.

       Gahagan makes three claims of ineffective assistance from trial counsel.

He maintains counsel was ineffective for failing to (1) object when the State

recalled a witness, (2) move for judgment of acquittal when the State rested, and

(3) file a writ of certiorari to challenge the court’s finding of contempt.

       We review claims of ineffective assistance de novo. State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006). “To establish his claim of ineffective assistance of

counsel, [Gahagan] must demonstrate (1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.” Id. (citing Strickland v.

Washington, 466 U.S. 668, 687–88 (1984)).            Gahagan’s claims fail if either

element is lacking. See Everett v State, 789 N.W.2d 151, 159 (Iowa 2010). We

consider the cumulative effect of possible errors when considering a defendant’s

claims of ineffective assistance. See State v. Clay, 824 N.W.2d 488, 500 (Iowa

2012). We resolve claims of ineffective assistance on direct appeal only when

the record is adequate to do so. See id. Here, we find the record adequate.
                                          9


       1. Recalling Witness. Gahagan maintains trial counsel was ineffective

for failing to object when the State recalled Detective Martin; he claims that if his

counsel had objected, it is “unlikely” the trial court would have allowed the

detective to retake the stand. We disagree with Gahagan’s contention.

       First, the State had not rested; Detective Martin was recalled while the

State was still presenting its case-in-chief. Cf. State v. Long, 814 N.W.2d 572,

577 (Iowa 2012) (“[T]here are issues of justice and fairness to the defendant

which are implicated any time the court is asked by the State to reopen the

record,” but even then”[o]mission of evidence by accident or inadvertence is a

proper reason to reopen the record.”). “A trial court has very broad discretion to

permit or refuse a party from recalling a witness.” State v. Elliott, 806 N.W.2d

660, 674 (Iowa 2011). Our supreme court has found the district court properly

exercised its discretion when it allowed the State to recall a witness where, “[t]he

state had not yet rested, the witnesses were recalled to correct or explain

testimony already given, and the defendant had unlimited opportunity to cross

examine.” State v. Ivy, 300 N.W.2d 310, 311 (Iowa 1981). Additionally, as the

State points out, even if the court had not allowed Detective Martin to be recalled,

there were other witnesses who had not yet testified, such as the evidence

technician, who could have been asked about the marijuana packaging and

whether it had a drug tax stamp affixed to it.

       Gahagan cannot establish that he was prejudiced by counsel’s failure to

object to Detective Martin being recalled.

       2. Motion for Judgment of Acquittal.         Here, Gahagan reiterates his

previous argument, claiming his “trial attorney was ineffective in failing to object
                                         10


to the State recalling Detective Martin. If a proper objection had been lodged and

sustained, no evidence was presented during the trial to prove that the marijuana

did not have the required tax stamp affixed to it.”

       Insofar as Gahagan is repeating his claim from above, we repeat our

answer. He cannot establish he was prejudiced by his trial counsel’s lack of

objection to recalling the detective. We also consider whether trial counsel had a

duty to raise a motion for judgment of acquittal on the failure-to-affix charge at

the close of the State’s evidence. See State v. Fannon, 799 N.W.2d 515, 520

(Iowa 2011) (“[T]rial counsel is not ineffective in failing to urge an issue that has

no merit.”).

       To prove its case, the State had the burden to prove beyond a reasonable

doubt that:

              1. On or about the 21st day of November, 2013, in Scott
       County, Iowa, the defendant knowingly possessed a taxable
       substance as defined in Instruction No. 23
              2. Defendant acquired or possessed in this State forty-two
       and one half grams or more of a substance consisting of or
       containing marijuana.
              3. The taxable substance that the defendant possessed did
       not have permanently affixed to it a stamp, label or other official
       indication of payment of the state tax imposed on the substance.

If counsel had moved for judgment of acquittal, the court would have reviewed

the evidence in the light most favorable to the State.       State v. Duncan, 312

N.W.2d 519, 522 (Iowa 1981). The marijuana testing report indicating the weight

of the recovered marijuana was admitted at trial, and Detective Brian Morel

testified the combined net weight was approximately ninety-nine grams.

Detective Martin testified that she was the evidence collection officer on the

scene and there was no drug tax stamp affixed to the packaging of the marijuana
                                             11


when it was seized.          Additionally, photographs of the marijuana (and its

packaging) from the scene were admitted into evidence as well the actual

packages themselves.

       Because there is substantial evidence to support Gahagan’s conviction for

failure to affix a drug tax stamp, Gahagan’s trial counsel was not ineffective for

failing to move for judgment of acquittal on the charge.

       3. Writ of Certiorari. Gahagan claims trial counsel was ineffective for

failing to file a petition for writ of certiorari challenging the district court’s finding of

contempt. He maintains the action did not comport with due process and the

district court did not find his actions in failing to cooperate with the preparation of

the PSI report willful beyond a reasonable doubt.

       The State maintains this claim is moot because Gahagan has already

served his one-day sentence for the contempt finding.                  We agree.        See

Hutcheson v. Iowa Dist. Ct., 480 N.W.2d 260, 264–65 (Iowa 1992) (finding a

case was moot when the defendant had served his required seven days following

a finding of contempt because he had already satisfied the judgment and

sentence.).

       [A]fter petitioner’s service of his sentence and its expiration, there
       was no longer a subject matter on which the judgment of this Court
       could operate. A . . . court is without power to decide moot
       questions or to give advisory opinions which cannot affect the rights
       of the litigants in the same case before it. The sentence cannot be
       enlarged by this Court’s judgment, and reversal of the judgment
       below cannot operate to undo what has been done or restore to
       petitioner the penalty of the term of imprisonment which he has
       served.

Id. at 264 (quoting St. Pierre v. United States, 319 U.S. 41, 42–43 (1943)).
                                        12


       For all of the reasons stated, each of Gahagan’s claims of ineffective

assistance fails.

       B. Sentencing.

       Gahagans maintains the district court abused its discretion when

sentencing him, claiming the court (1) considered an improper sentencing factor,

namely, pending charges; and (2) wrongly refused to allow defense witnesses to

make a statement at the hearing.

       We review the sentence imposed in a criminal case for correction of errors

at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not reverse

“absent an abuse of discretion or some defect in the sentencing procedure.” Id.

       Here, before imposing sentence, the court stated the following:

               You had—it doesn’t matter that it was two years old. You
       committed another crime and admitted to committing another crime
       while you still had other charges pending and cases pending.
       You’ve been rearrested since these. Now, they’re allegations, but
       you still have been arrested, and that is not something that’s—
       that’s something that’s in violation of your pretrial release.

“It is a well-established rule that a sentencing court may not rely upon additional,

unproven, and unprosecuted charges unless the defendant admits to the charges

or there are facts presented to show the defendant committed the offenses.” Id.

at 725. The State urges us to find the court did not rely on the pending charges

even though the court “mentioned” them. The State claims that because the

court “explicitly noted that the arrest involved only allegations,” we should not

draw an inference of improper sentencing considerations. However, we note that

the court did not expressly disclaim the pending charges.            See State v.

Mathewson, 684 N.W.2d 243, 244 (Iowa 2004) (“But we cannot ignore the error
                                         13


here by assuming the sentencing court did not consider it. In the first place, the

court did not state the inadmissible evidence would not be a factor in

determination.”).

       Additionally, “[w]hen a sentencing court has discretion, it must exercise

that discretion.” State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). “Failure to

exercise that discretion calls for a vacation of the sentence and a remand for

resentencing.” Id. Iowa Code section 901.2 mandates the court “shall receive

from the state, from the judicial district of department of correctional services,

and from the defendant any information which may be offered which is relevant

to the question of sentencing.” Moreover, the court “may consider information

from other sources.” Iowa Code § 901.2(1) (emphasis added). Here, the court

appeared to believe it did not have the discretion to decide whether to hear from

Gahagan’s witnesses at the sentencing hearing. The court stated, “They are not

victims. Only victims are allowed by statute to speak,” “I cannot consider what

you say statutorily unless the county attorney agrees to it. Do you understand

that?” and “I can’t consider—you can talk, but I cannot consider anything you say

because it’s not statutorily allowed.”

       Based on the court’s reference to Gahagan’s pending charges and the

incorrect understanding that the court was prevented from hearing from

Gahagan’s witnesses at sentencing, we reverse Gahagan’s sentence for failure

to affix a drug tax stamp and remand for resentencing.3

       CONVICTION AFFIRMED; SENTENCE REVERSED AND REMANDED.


3
  Because we remand for resentencing, we do not address Gahagan’s claim that the
court failed to provide adequate reasons on the record for his consecutive sentences.
