               IN THE SUPREME COURT OF IOWA
                            No. 25 / 04-1327

                           Filed May 19, 2006

STATE OF IOWA,

      Appellee,

vs.

JESSE LEE SIMMONS,

      Appellant.


      Appeal from the Iowa District Court for Page County, James S.

Heckerman (motion to suppress), Timothy O’Grady (trial), and J.C. Irvin

(sentencing), Judges.



      Defendant appeals his conviction and sentence for manufacturing

methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (2003).

AFFIRMED.



      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey,

Assistant State Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, Richard Davidson, County Attorney, and Paul Walter and

Tony Almquist, Assistant County Attorneys, for appellee.
                                      2

WIGGINS, Justice.

         The defendant was found guilty of manufacturing methamphetamine

in violation of Iowa Code section 124.401(1)(b)(7) (2003). In this appeal, the

defendant challenges the district court’s ruling on his motion to suppress as

to the items seized from his apartment and the statements he made to

police officers. Additionally, he claims his trial counsel provided ineffective

assistance of counsel by failing to challenge the constitutionality of a

sentencing statute, Iowa Code section 901.10(2).        Because we find the

defendant’s claims are without merit, we affirm the judgment of the district

court.
         I. Background Facts and Proceedings.

         At approximately 11:37 p.m. on December 3, 2003, police officer

Jesse Hitt responded to a complaint of loud music coming from apartment

eight of Parkview Apartments in Clarinda, Iowa.           The access to the

apartments is from the outside, requiring Hitt to go up an outside set of

stairs and then enter a door into a hallway where the apartments are

located. While he was at apartment eight, Hitt smelled what he suspected

to be anhydrous ammonia coming from apartment nine across the hall.
         Hitt did not perceive an emergency to prompt him to evacuate the

apartment building when he first detected the odor. Hitt went to the police

station and contacted lieutenant Keith Brothers at his home at

approximately 12:08 a.m. Having safety concerns for the tenants of the

apartment building and fearful of a potential fire or explosion, Brothers

advised Hitt to contact sergeant David Rine, a state-certified clandestine

methamphetamine lab expert. Brothers wanted Hitt and Rine to go to the

apartment building so Rine could verify the odor as that of anhydrous

ammonia.       Brothers further advised Hitt if Rine believed a working
                                     3

methamphetamine lab was inside the apartment, he should knock,

announce, and make entry without a warrant.

      Hitt contacted Rine at his home and they met at the police station.

They and another officer went to the apartment building at 12:43 a.m. Rine

confirmed the odor in the hallway was that of anhydrous ammonia. Rine

was not aware of any legitimate purpose for possessing anhydrous ammonia

in an apartment, but he knew it is used to manufacture methamphetamine.

Rine also knew the risks created by a methamphetamine laboratory include

fires created from the fumes, chemical exposures, inhalation exposures

from the toxic fumes, and waste products left over from the chemical

reactions. Rine further knew these risks not only affect the people making

the methamphetamine, but also affect other residents in a multiple-

occupant dwelling.
      Hitt knocked on the door and a woman asked who was there. Hitt

announced it was the police. The woman then asked what they wanted.

Hitt responded they were there for a safety check because they could smell

anhydrous ammonia, and said the door needed to be opened immediately.

Receiving no response, Hitt knocked again because the officers could hear
something in the apartment, and advised her to open the door or they

would force it open. At this time, Rine became concerned about the strong

odor of anhydrous ammonia. Rine did not know whether there was a

working methamphetamine lab or a container leaking anhydrous ammonia.

He was worried about the safety of the occupants of the apartment as well

as the safety of the other occupants of the building.

      Again receiving no response from the occupants of the apartment, the

officers forcibly entered the apartment with guns drawn.     The odor of

anhydrous ammonia was strong.        The officers observed Cindy Cordell
                                      4

standing in the middle of the room and ordered her to get down on the floor.

The defendant, Jesse Lee Simmons, walked into the room from the back of

the apartment. Rine had his gun pointed at Simmons. The strong smell of

anhydrous ammonia caused Rine’s eyes to water. Rine asked Simmons if

there was an active methamphetamine lab in the apartment. Simmons

responded there was. Rine asked where the lab was located and Simmons

told him it was in the bathroom. Rine then asked what stage it was in to

determine the chemicals and risks involved. Simmons answered by stating

the lab was in the first rinse stage, the lab belonged to him, and Cordell was

not involved with the lab.
      The officers handcuffed Cordell and Simmons, removed them from the

apartment, and gave them decontamination suits to wear. Due to the risk

of chemical exposure, Rine was unable to conduct a safety sweep of the

apartment at that time. He was not concerned about other individuals

being in the apartment because either Cordell or Simmons told him no one

else was in the apartment. Rine closed the door to the apartment. The

officers also evacuated the occupants of apartment eight.

      Rine then contacted dispatch, performed a perimeter sweep of the
building for other risks, and discussed a possible evacuation of the

remainder of the building with the fire chief. He reentered the apartment in

protective gear with a second lab tech to conduct a safety sweep and remove

the containers and chemicals from the apartment. Upon reentry, Rine

tested the anhydrous ammonia levels in the apartment. The levels were

almost three times the acceptable OSHA levels for short-term exposure.

The officers found, among other items, a glass one-gallon container in the

bathtub containing a bluish tinted liquid, a funnel, and a blue shop towel.

There was also some off-white sludge residue in the bathtub. The officers
                                     5

removed these items and preserved them as evidence. After neutralizing the

problem in the apartment by removing the hazardous items and ventilating

the apartment, the officers left the apartment and waited for Brothers’

instructions.

      Brothers arrived at the apartment building twenty to thirty minutes

after the initial entry into the apartment. Simmons was in handcuffs and

accompanied by an officer. Upon seeing Simmons, Brothers said, “[H]ello,

Jesse, what’s going on.” Simmons responded by repeating what he told

Rine, that the lab was all his and Cordell had nothing to do with it. Later,

Brothers talked to Simmons again. This conversation took place in a police

car. After Brothers advised Simmons of his Miranda rights, Simmons again

stated the lab was his and Cordell had nothing to do with it.
      Brothers talked to Cordell when she was in a police car. Brothers

asked her to consent to a search of the apartment. She eventually did so

after some discussion between her and Brothers. After receiving Cordell’s

consent, Rine entered the apartment for a third time and collected non-

hazardous items used in the methamphetamine-making process.

      Simmons was charged with two counts: (1) conspiring or acting with
others to manufacture, deliver, or possess more than five grams of a

schedule II controlled substance (methamphetamine) with intent to

manufacture or deliver in the presence of a minor and within one thousand

feet of certain real property, in violation of Iowa Code sections

124.401(1)(b)(7), 124.401A, and 124.401C(1), (2)(b)-(c), 2(e); and (2)

unlawful possession of a precursor substance in violation of Iowa Code

section 124.401(4)(b). The State filed an amendment to the trial information

alleging Simmons was a habitual offender in count two in violation of Iowa

Code sections 902.8 and 902.9(3).
                                       6

      Simmons pled not guilty and filed a motion to suppress evidence and

a waiver of jury trial.     He subsequently filed an amended motion to

suppress. The district court overruled the motion to suppress.

      The parties submitted the case to the court based on the minutes of

testimony in order to preserve Simmons’ right to appeal the suppression

ruling. The State agreed to amend count one by deleting all enhancing

charges and dismiss count two.         The court found Simmons guilty of

manufacturing methamphetamine in violation of Iowa Code section

124.401(1)(b)(7), a class “B” felony. The court sentenced Simmons to a term

of imprisonment not to exceed twenty-five years. Simmons appeals.
      II. Issues.

      There are two issues on appeal: (1) whether the district court erred in

overruling Simmons’ motion to suppress evidence as to the search of the

apartment and the statements made to officers; and (2) whether Simmons’

trial counsel provided effective assistance of counsel in regards to the failure

to challenge the constitutionality of Iowa Code section 901.10(2).

      III. Scope of Review.

      The first issue presented in this case is whether the district court
erred in not suppressing certain physical evidence and statements.

Simmons claims the district court should have granted his motion to

suppress based on the federal and state constitutions; therefore, our review

is de novo. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). This review

requires us to “ ‘make an independent evaluation of the totality of the

circumstances as shown by the entire record.’ ” State v. Turner, 630 N.W.2d

601, 606 (Iowa 2001) (citation omitted). We give deference to the factual

findings of the district court due to its opportunity to evaluate the credibility

of the witnesses, but we are not bound by such findings. Id.
                                     7

      The second issue presented in this case is whether Simmons’ trial

counsel provided effective assistance of counsel in regards to the failure to

challenge the constitutionality of Iowa Code section 901.10(2). Simmons

asserts his ineffective-assistance-of-counsel claim based on the federal and

state constitutions.   Although these claims are typically preserved for

postconviction relief actions, “we will address such claims on direct appeal

when the record is sufficient to permit a ruling.” State v. Wills, 696 N.W.2d

20, 22 (Iowa 2005).
      IV. Analysis.

      A. The initial search of the apartment. Simmons asserts the initial

search of the apartment was in contravention of the Fourth Amendment to

the United States Constitution. The Fourth Amendment assures “[t]he right

of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const. amend. IV. The

Fourth Amendment is binding on the states through the Fourteenth

Amendment of the federal constitution. Freeman, 705 N.W.2d at 297.

      Simmons also asserts the search violated article I, section 8 of the

Iowa Constitution. That section guarantees “[t]he right of the people to be
secure in their persons, houses, papers and effects, against unreasonable

seizures and searches shall not be violated.”      Iowa Const. art. I, § 8.

“Because [Simmons] has not asserted and we have not found a basis to

distinguish the protection afforded by the Iowa Constitution from those

afforded by the federal constitution under the facts of this case, our

analysis applies equally to both the state and federal grounds.” State v.

Carter, 696 N.W.2d 31, 37 (Iowa 2005).

      Unless a recognized exception to the warrant requirement exists,

searches and seizures conducted without a warrant are per se
                                       8

unreasonable. Freeman, 705 N.W.2d at 297. These exceptions include

“ ‘searches based on consent, plain view, probable cause coupled with

exigent circumstances, searches incident to arrest, and those based on the

emergency aid exception.’ ” Id. (citation omitted).

      The State is required to prove a recognized exception to the warrant

requirement by a preponderance of the evidence. Id. A court cannot admit

evidence obtained in violation of the Fourth Amendment.              Id.   In

determining if one of the recognized exceptions is applicable, the court must

assess a police officer’s conduct based on an objective standard. Id. A

search’s legality does not depend on the actual motivations of the police

officers involved in the search. Id.
      We must first determine whether Simmons had a legitimate

expectation of privacy, both subjectively and objectively, in the premises

searched. State v. Lovig, 675 N.W.2d 557, 562-63 (Iowa 2004). We make

this determination based on the unique facts of each case. Id. at 563. We

have said the Fourth Amendment clearly protects physical entry into one’s

home. Id. We have acknowledged a legitimate expectation of privacy may

extend to protect an overnight guest in the host’s home, but we have also
recognized there is no legitimate expectation of privacy if a guest is there

simply to conduct a business transaction. Id.

      Neither the State nor Simmons challenge Simmons’ legitimate

expectation of privacy in the apartment.       At the time of the search,

Simmons claimed to be living with Cordell in the apartment for

approximately six weeks.     Although he listed a friend’s address in his

application for court-appointed counsel, Simmons kept clothing and

personal belongings at the apartment. He testified he used his friend’s

address as a mailing address because he works on the road.           Cordell
                                     9

confirmed Simmons had lived in the apartment for six weeks and he kept

clothes and personal belongings there. Considering the circumstances of

this case in view of the values of the Fourth Amendment, Simmons did have

a legitimate expectation of privacy in the apartment.

      Next, we must determine whether the State proved an exception to

the warrant requirement by a preponderance of the evidence. The State

contends probable cause coupled with exigent circumstances relieved the
officers from the obligation to obtain a warrant. Probable cause to search

exists if, given the totality of the circumstances, “a person of reasonable

prudence would believe that evidence of a crime might be located on the

premises to be searched.” State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004).

      While it does not appear we have previously addressed the effect an

odor may have on probable cause to search under circumstances such as

those presented here, we have found probable cause in a somewhat similar

situation. See State v. Eubanks, 355 N.W.2d 57, 59 (Iowa 1984) (finding an

officer had sufficient probable cause to search a vehicle and its contents

based on the odor of marijuana drifting from the vehicle). The Supreme
Court has discussed when the detection of an odor establishes sufficient
probable cause for a magistrate to issue a search warrant. Johnson v.

United States, 333 U.S. 10, 13, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440

(1948). There the Court stated:

      If the presence of odors is testified to before a magistrate and
      he finds the affiant qualified to know the odor, and it is one
      sufficiently distinctive to identify a forbidden substance, this
      Court has never held such a basis insufficient to justify
      issuance of a search warrant. Indeed it might very well be
      found to be evidence of most persuasive character.

Id.
                                      10

      In this case, Hitt smelled what he suspected to be anhydrous

ammonia. Not being an expert in the area of methamphetamine labs, Hitt

contacted his superior, Brothers, for instructions on how to proceed.

Brothers advised Hitt to meet with Rine, a state-certified clandestine

methamphetamine lab expert, to assess the situation.          Rine, who had

experience in handling clandestine methamphetamine labs, determined the

distinctive odor in the hallway was in fact that of anhydrous ammonia.

Rine knew there was no legitimate purpose for possessing anhydrous

ammonia in an apartment and he knew it is used to manufacture

methamphetamine. Based on Rine’s training and experience, coupled with

the distinct odor of anhydrous ammonia and the lack of household uses for

it, we find the officers had probable cause to believe the occupants of the

apartment were engaged in criminal activity. See United States v. Clayton,

210 F.3d 841, 845 (8th Cir. 2000) (finding an officer’s perception of an odor

associated with methamphetamine production constituted probable cause

for a search); Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 28 F.3d 1388, 1393-94 (5th Cir. 1994) (finding a chemical
odor associated with the manufacturing of amphetamines, detected by an
officer familiar with such odors through experience and training, may alone

establish probable cause); United States v. Sweeney, 688 F.2d 1131, 1137

(7th Cir. 1982) (finding an officer who is qualified to identify an odor, which

is sufficiently distinctive to identify the manufacture of methamphetamine,

may establish probable cause for a search warrant).

      Finally, we must determine whether exigent circumstances existed to

allow the warrantless search. We have found exigent circumstances to exist

where a danger of violence and injury to officers or others is present. State

v. Holtz, 300 N.W.2d 888, 893 (Iowa 1981). When an exigency poses a
                                     11

threat of danger to others, officers can perform a limited search to remove

the immediate risk. United States v. Walsh, 299 F.3d 729, 734 (8th Cir.
2002).

      The volatile nature of and the dangers created by methamphetamine

labs can be exigent circumstances justifying an immediate limited search of

premises harboring such a lab. Kleinholz v. United States, 339 F.3d 674,

677 (8th Cir. 2003).    In this case, Rine’s confirmation of the odor as

anhydrous ammonia, its use in manufacturing methamphetamine, and the

risks created by a methamphetamine lab in a multiple-occupant dwelling
support a finding of exigency.      Numerous cases have upheld limited

searches conducted by officers without a warrant to eliminate the potential

hazards of a methamphetamine lab when the officers had probable cause to

believe they had discovered an ongoing methamphetamine lab. United

States v. Lloyd, 396 F.3d 948, 954 (8th Cir. 2005); see also Walsh, 299 F.3d

at 734 (collecting precedent from other federal circuit courts of appeals).

      Here, the testimony of the officers establishes the dangers of

methamphetamine manufacturing. Besides the risk of fire or explosion, the
exposure to the fumes of anhydrous ammonia posed a serious threat to the
persons manufacturing the drug, the officers who entered the apartment,

and the neighbors who were evacuated from their apartment across the

hall. During the initial search of the apartment, the officers conducted a

limited search, only removing the hazardous items that posed an immediate

threat.   After determining the levels of anhydrous ammonia in the

apartment exceeded the acceptable OSHA levels for short-term exposure by

almost three times, the officers ventilated the apartment, left the apartment,

and waited for further instructions before entry was made for the third time.
                                     12

      Simmons argues the officers’ conduct in this case, such as the time

delay between Hitt’s detection and Rine’s confirmation of the odor, and the

lack of consideration to evacuate the other tenants before Rine’s

confirmation of the odor, was inconsistent with the claimed exigency. It is

possible that an officer’s conduct “which is in any way inconsistent with the

purported reason for the entry is a just cause for healthy skepticism by the

courts.” See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 6.6(a) (4th ed. 2004). However, Simmons’ argument

misses the mark here because an officer is required to have specific,

articulable grounds justifying a finding of exigency, and a warrantless

search’s legality is not determined by the subjective beliefs of the officer

involved. State v. Naujoks, 637 N.W.2d 101, 109 (Iowa 2001). Thus, the

alleged inconsistency of the officers’ actions in the instant case, which

supposedly evidences their subjective beliefs as to the lack of exigency of

the situation, is irrelevant to the objective assessment of whether the search

was reasonable based on exigent circumstances.

      When Hitt first detected the odor of what he suspected was
anhydrous ammonia, his lack of experience did not allow him to fully

comprehend the gravity of the situation.         When he returned to the
apartment building with Rine, the dangers of a working methamphetamine

lab continued to exist and nothing in this record suggests the exigency had

disappeared by the time Hitt and Rine arrived at the building. Moreover,

the conclusion that a bona fide exigency existed is supported by the officers’

conduct, which included removing Cordell and Simmons from the

apartment, giving them decontamination suits, evacuating the occupants of

apartment eight, discussing a possible evacuation of the remainder of the
                                     13

building with the fire chief, and reentering the apartment in protective gear

to remove the hazardous items from the apartment.

      Accordingly, there were exigent circumstances present in this case.

Therefore, the presence of probable cause coupled with exigent

circumstances makes the initial search of the apartment an exception to the

warrant requirement.

      B. The first statements made by Simmons when the officers entered the

apartment. The Fifth Amendment to the United States Constitution states

“[n]o person . . . shall be compelled in any criminal case to be a witness

against himself.”     U.S. Const. amend. V.        The right against self-

incrimination applies to the states because it is incorporated into the Due

Process Clause of the Fourteenth Amendment. Turner, 630 N.W.2d at 606.

Before a person in custody may be interrogated, the person must be advised

as to the right to remain silent and the right to have appointed counsel

present. Id. at 607. These Miranda requirements do not come into play

unless both custody and interrogation are present.            Id.   Custodial

interrogation is defined as “ ‘questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.’ ” Id. (citation omitted).
      In regards to custody, we use an objective test where the inquiry is

how a reasonable person in the suspect’s position would have understood

the situation. Id. In making this determination, we may consider “ ‘the

language used to summon the individual, the purpose, place and manner of

the interrogation, the extent to which the defendant is confronted with

evidence of his guilt, and whether the defendant is free to leave the place of

questioning.’ ” State v. Smith, 546 N.W.2d 916, 922 (Iowa 1996) (citations
                                      14

omitted). For purposes of this appeal, we will assume without deciding

Simmons was in custody at this time.
      We have recognized a public safety exception to the Miranda

requirements. State v. Deases, 518 N.W.2d 784, 790-91 (Iowa 1994). Such

an exception exists where “the need for answers to questions in a situation

posing a threat to the public safety outweighs the need for the prophylactic

rule protecting the Fifth Amendment’s privilege against self-incrimination.”
New York v. Quarles, 467 U.S. 649, 657, 104 S. Ct. 2626, 2632, 81 L. Ed.

2d 550, 558 (1984). The exception applies if the officer’s question is not

“designed solely to elicit testimonial evidence from a suspect.” Id. at 658-

59, 104 S. Ct. at 2633, 81 L. Ed. 2d at 559.

      When Rine entered the apartment, the strong odor of anhydrous

ammonia was present. This odor posed a safety risk to him, his fellow

officers, the occupants of the apartment, and the neighbors. At that point,

Rine did not know if an ignition source was available or if a fire or explosion

could occur. We conclude Rine’s inquiries as to the presence and status of

a methamphetamine lab were for the purpose of obtaining information that

would help him safely address the potentially volatile and dangerous
situation confronting the officers at the scene, and not solely to obtain

incriminating information from Simmons. Therefore, Simmons’ admissions

in response to Rine’s inquiries are admissible in spite of the fact Rine did

not advise him of his Miranda rights.

      C. The other statements made by Simmons to Brothers. Simmons

asserts the statements he made to Brothers while he was handcuffed and

accompanied by an officer are inadmissible due to Brothers’ failure to

advise him of his Miranda rights prior to Brothers stating to him, “[H]ello,

Jesse, what’s going on.” Simmons also asserts the statements he made to
                                     15

Brothers in the police car after receiving his Miranda rights are also

inadmissible because there was no break in the causal connection between

the alleged illegal police actions and the statements obtained after Simmons

received his Miranda rights. Even if we assume without deciding these

statements were inadmissible, we find their admission was harmless

beyond a reasonable doubt.
      “In order for a constitutional error to be harmless, the court must be

able to declare it harmless beyond a reasonable doubt.”          Deases, 518

N.W.2d at 791. In assessing whether a constitutional error was harmless,

we have stated:

              There are two steps in the harmless error analysis. We
      first consider all of the evidence the jury actually considered,
      and then we weigh the probative force of that evidence against
      the erroneously admitted evidence. The inquiry is not whether
      in a trial that occurred without the error, a guilty verdict would
      surely have been rendered, but whether the guilty verdict
      actually rendered in this trial was surely unattributable to the
      error.

State v. Canas, 597 N.W.2d 488, 493-94 (Iowa 1999) (citations omitted),

abrogated on other grounds by Turner, 630 N.W.2d at 606 n.2.

      Here, the statements Simmons gave to Brothers in each of the above

instances were substantially the same statements Simmons gave to Rine in

the apartment. We have already concluded Simmons’ statements to Rine

were admissible under the public safety exception to the Miranda

requirements.     “If substantially the same evidence is in the record,

erroneously admitted evidence is not considered prejudicial.” Deases, 518

N.W.2d at 791. Consequently, the district court’s finding of guilt could not

be attributable to the second or third statements made to Brothers.

Therefore, any alleged error is harmless beyond a reasonable doubt.
                                     16

      D. Evidence seized after Brothers obtained Cordell’s consent to search

the apartment. Simmons asserts the consent Cordell gave Brothers to enter

the apartment for a third time was not given voluntarily and the items

seized based on such consent should have been suppressed. Again, even if

we assume without deciding these items were inadmissible, their admission

was harmless beyond a reasonable doubt. We have already determined the

containers and chemicals seized during the initial limited search were

admissible.   The DCI Criminalistics Laboratory tested these items and

determined    they   contained    methamphetamine        or   precursors    of

methamphetamine. The items seized after receiving Cordell’s consent were

the non-hazardous items used to manufacture methamphetamine.

      In applying the constitutional harmless error test, we are satisfied

beyond a reasonable doubt the district court’s finding of guilt could not be

attributable to the evidence of the non-hazardous items. The properly

seized evidence coupled with the admission of Simmons that it was his lab

overwhelmingly establishes Simmons was guilty of manufacturing

methamphetamine. Accordingly, any alleged error is harmless beyond a

reasonable doubt.
      E. Ineffective-assistance-of-counsel claim. “In order for a defendant to

succeed on a claim of ineffective assistance of counsel, the defendant must

prove: (1) counsel failed to perform an essential duty and (2) prejudice

resulted.” Wills, 696 N.W.2d at 22. In order to satisfy the first element,

“ ‘counsel’s performance is measured against the standard of a reasonably

competent practitioner with the presumption that the attorney performed

his duties in a competent manner.’ ” State v. Doggett, 687 N.W.2d 97, 100

(Iowa 2004) (citations omitted).     Prejudice exists where “ ‘there is a

reasonable probability that, but for the counsel’s unprofessional errors, the
                                        17

result of the proceeding would have been different.’ ” Wills, 696 N.W.2d at

22 (citations omitted).
       Simmons argues his trial counsel had a duty to challenge the

constitutionality of Iowa Code section 901.10(2) under equal protection

principles as it effectively penalizes defendants for exercising their right

against self-incrimination and their right to a jury trial. Section 901.10(1)

allows a sentencing court to sentence a person for a first conviction “to a
term less than provided by the statute if mitigating circumstances exist and

those circumstances are stated specifically in the record.”            Iowa Code

§ 901.10(1). However, the sentencing court is not allowed to reduce the

sentence for a first conviction “if the sentence under section 124.413

involves an amphetamine or methamphetamine offense under section

124.401, subsection 1, paragraph ‘a’ or ‘b’ ” unless the defendant pleads

guilty. Id. § 901.10(2). Simmons claims a strict scrutiny review should

apply here because fundamental rights are implicated. He asserts the

statute fails such review because there is no compelling state interest in

treating methamphetamine offenses constituting a class “B” felony different
than   other     class   “B”   felony   drug   offenses   or   class   “C”   felony
methamphetamine offenses based on whether the defendant pleads guilty or

goes to trial.

       The Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution disallows states from “deny[ing] to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1. The Iowa Constitution states “[a]ll laws of a general nature shall

have a uniform operation; the general assembly shall not grant to any

citizen, or class of citizens, privileges or immunities, which, upon the same

terms shall not equally belong to all citizens.” Iowa Const. art. I, § 6. We
                                      18

acknowledge we have the obligation to determine whether a challenged law

violates Iowa’s constitutional equality provision. Racing Ass’n of Cent. Iowa
v. Fitzgerald, 675 N.W.2d 1, 4 (Iowa 2004). While the judgment of the

Supreme Court under the federal Equal Protection Clause is persuasive, it

does not bind this court’s evaluation of the law under the Iowa Constitution.

Id. at 5. Nevertheless, “[b]ecause neither party in this case has argued that

our equal protection analysis under the Iowa Constitution should differ in
any way from our analysis under the Federal Constitution, we decline to

apply divergent analyses in this case.” Sanchez v. State, 692 N.W.2d 812,

817 (Iowa 2005).

      We subject laws to different levels of review based on their

classifications and the rights they affect. Id.

      If a statute affects a fundamental right or classifies individuals
      on the basis of race, alienage, or national origin, it is subjected
      to strict scrutiny review. The State must prove it is narrowly
      tailored to the achievement of a compelling state interest. If a
      statute classifies individuals on the basis of gender or
      legitimacy, it is subject to intermediate scrutiny and will only
      be upheld if it is substantially related to an important state
      interest.

Id. (citations omitted). However,

      “[t]he general rule is that legislation is presumed to be valid
      and will be sustained if the classification drawn by the statute
      is rationally related to a legitimate state interest. When social
      or economic legislation is at issue, the Equal Protection Clause
      allows the States wide latitude, and the Constitution presumes
      that even improvident decisions will eventually be rectified by
      the democratic processes.”

Id. (alteration in original) (citation omitted). Rational basis review requires

only that the law “be rationally related to a legitimate state interest.” Id. at

817-18. Such review allows a State to act on the basis of certain differences

where a rational relationship exists between the disparity in treatment and

some legitimate government purpose. Id. at 818.
                                      19

      In State v. Biddle, we applied the rational basis test and determined

section 901.10(2) is “rationally related to the government’s interest in

curbing the increasing and widespread use of methamphetamine, a highly

addictive drug.” 652 N.W.2d 191, 203 (Iowa 2002). In Biddle, we did not

examine the statute under a strict scrutiny analysis because the defendant

failed to preserve error on the application of this test. Id. However, the

Supreme Court has addressed an equal protection challenge alleging a

similar statutory scheme penalized a defendant for exercising a

fundamental right. Corbitt v. New Jersey, 439 U.S. 212, 225, 99 S. Ct. 492,

500, 58 L. Ed. 2d 466, 478 (1978).

      There a New Jersey statutory scheme provided for mandatory

punishment of life imprisonment for a defendant convicted by a jury of first-

degree murder, but allowed the possibility of a sentence of less than life

imprisonment for a defendant who entered a plea of no contest. Id. at 214-

16, 99 S. Ct. at 495-96, 58 L. Ed. 2d at 471-72. In rejecting the defendant’s

argument “that the sentencing scheme infringes [on a defendant’s] right to

equal protection under the Fourteenth Amendment because it penalizes the

exercise of a ‘fundamental right,’ ” the Court stated:

      We rejected a similar argument . . . noting that “[t]o fit the
      problem . . . into an equal protection framework is a task too
      Procrustean to be rationally accomplished.” All New Jersey
      defendants are given the same choice. Those electing to
      contest their guilt face a certainty of life imprisonment if
      convicted of first-degree murder; but they may be acquitted
      instead or, in a proper case, may be convicted of a lesser
      degree of homicide and receive a sentence of less than life.
      Furthermore, a plea of [no contest] may itself result in a life
      sentence. The result, therefore, “may depend upon a particular
      combination of infinite variables peculiar to each individual
      trial. It simply cannot be said that a state has invidiously
      ‘classified’ . . . .” It cannot be said that defendants found guilty
      by a jury are “penalized” for exercising the right to a jury trial
      any more than defendants who plead guilty are penalized
      because they give up the chance of acquittal at trial. In each
                                     20
      instance, the defendant faces a multitude of possible outcomes
      and freely makes his choice. Equal protection does not free
      those who made a bad assessment of risks or a bad choice
      from the consequences of their decision.

Id. at 225-26, 99 S. Ct. at 500-01, 58 L. Ed. 2d at 478 (citations omitted).

Accordingly, if Simmons’ trial counsel had raised this issue, the trial court

should have found the statutory scheme did not violate the state or federal

Equal Protection Clauses.       Therefore, Simmons’ claim of ineffective

assistance of counsel must fail. See Wills, 696 N.W.2d at 24 (finding trial

counsel was not ineffective for failing to raise an issue with no merit).
      V. Summary and Disposition.

      We find no error in the district court’s ruling on the motion to

suppress regarding the initial search of the apartment and the first

statements made by Simmons when the officers entered the apartment. We

do not reach the other issues raised by Simmons regarding the motion to

suppress because any constitutional error alleged was harmless beyond a

reasonable doubt.     Finally, we find Simmons’ trial counsel was not

ineffective in failing to challenge the constitutionality of Iowa Code section

901.10(2). Therefore, we affirm the judgment of the district court.
      AFFIRMED.
