                    IN THE COURT OF APPEALS OF IOWA

                                No. 4-006/ 12-1556
                               Filed March 12, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NATHANIEL LAMICE YANCEY JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Defendant appeals from the judgment, convictions, and sentence following

a jury trial and guilty verdict. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

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

General, John P. Sarcone, County Attorney, Jim Ward, Assistant County

Attorney, and Anthony Loan, Student Legal Intern, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.

McDonald, J., takes no part.
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DANILSON, C.J.

       Nathaniel Yancey Jr. appeals from the judgment, convictions, and

sentence following a jury trial and guilty verdict. On appeal, Yancey maintains he

received ineffective assistance from counsel at trial. In support of this contention,

he maintains counsel was ineffective for failing to object to a jury instruction. He

also maintains the district court failed to provide adequate reasoning to explain

the decision to impose consecutive sentences. Following our review, we find

counsel did not provide ineffective assistance and affirm Yancey’s convictions.

We also find the district court provided adequate reasons for the decision to

impose consecutive sentences. Accordingly, we affirm.

I. Background Facts and Proceedings.

       On December 16, 2011, Yancey was charged with attempt to commit

murder, in violation of Iowa Code section 707.11 (2011); assault on a peace

officer with a weapon, in violation of sections 708.1 and 708.3; assault while

participating in a felony, in violation of section 708.3; going armed with intent, in

violation of section 708.8; possession of a firearm by a felon, in violation of

section 724.26; and intimidation with a dangerous weapon with intent, in violation

of section 708.6.

       A jury trial commenced on May 14, 2012. Following the trial, the jury

returned a guilty verdict on the lesser-included offense of assault with intent to

inflict serious injury on the attempt-to-commit-murder charge. The jury returned

guilty verdicts on each of the other five charges. Yancey stipulated he was a

habitual offender for the purpose of the sentencing enhancement, pursuant to

Iowa Code section 902.8.
                                         3


       Yancey was sentenced on August 3, 2012. The district court sentenced

Yancey to serve an indeterminate term of imprisonment not to exceed two years

for the conviction of assault with intent to inflict serious injury. For each of the

other five convictions, the court sentenced Yancey to serve an indeterminate

term of imprisonment not to exceed fifteen years. The court ordered the five

fifteen-year sentences to run consecutive to each other, but concurrent to the

sentence for the assault with intent to inflict serious injury, for a total term of

incarceration not to exceed seventy-five years. Yancey appeals.

II. Standard of Review.

       A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W. 2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims for ineffective assistance of counsel de novo. Id.

       Our review of the district court’s sentencing decision is for correction of

errors at law. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). The decision

to impose a sentence within statutory limits is “cloaked with a strong presumption

in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The sentence

will not be upset on appeal “unless the defendant demonstrates an abuse of trial

court discretion or a defect in the sentencing procedure.” State v. Grandberry,

619 N.W.2d 399, 401 (Iowa 2000). An abuse of discretion is found only when the

sentencing court exercises its discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable. Thomas, 547 N.W.2d at 225. In

criminal cases the court is to “state on the record its reasons for selecting the
                                          4


particular sentence.” Iowa R. Crim. P. 2.23(3)(d). We review both the court’s

stated reasons made at the sentencing hearing and its written sentencing order.

See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). The statement of

reasons can be “terse and succinct,” as long as its brevity does not hinder review

of the district court’s discretion. State v. Victor, 310 N.W.2d 201, 205 (Iowa

1981).

III. Discussion.

         A. Ineffective Assistance of Counsel.

         One of the charges against Yancey was going armed with intent. Iowa

Code section 708.8 defines it as, “A person who goes armed with any dangerous

weapon with the intent to use without justification such weapon against the

person of another commits a class ‘D’ felony.” At trial, the jury was provided the

following instruction, based on the uniform instruction, regarding the charge:

                 The State must prove all of the following elements of Going
         Armed With Intent as charged in Count IV:
                 1. On or about the 3rd day of December, 2011 the defendant
         was armed with a handgun.
                 2. The handgun was a dangerous weapon as defined in
         Instruction No. 25.
                 3. The defendant was armed with the specific intent to use
         the handgun against another person.
                 4. During the commission of this offense, the defendant
         moved from one location to another.
                 5. The defendant specifically intended to shoot at Des
         Moines Police Officer Sone Cam.
                 If you find the State has proved all of the elements, the
         defendant is guilty of Going Armed With Intent. If the State has
         failed to prove any one of the elements, the Defendant is not guilty
         on Count IV.

Yancey maintains that an essential element of going armed with intent is proof of

movement, and he claims the jury instruction did not reflect this essential part of
                                         5


the offense. He maintains that counsel’s failure to object to the jury instruction

amounts to ineffective assistance from counsel at trial and that he was prejudiced

by the failure.

         To succeed on his claim, Yancey must show by a preponderance of the

evidence that (1) his counsel failed to perform an essential duty and (2) prejudice

resulted. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To prove

counsel failed to perform an essential duty, Yancey must show “counsel’s

representation fell below an objective standard of reasonableness . . . under

prevailing professional norms.” See Strickland v. Washington, 466 U.S. 668, 688

(1984). In doing so, he must overcome “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” See

id. at 689. Prejudice has resulted when “there is a reasonable probability that,

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

been different.” Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006). We can

affirm if either prong is absent and need not engage in both prongs of the

analysis if one is lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa

2010).

         In this case, Yancey’s trial counsel did not breach an essential duty.

Yancey is correct that “going armed” requires proof of movement. See State v.

Ray, 516 N.W.2d 863, 865 (Iowa 1994) (“As for ‘going’armed, we believe the

term necessarily implicates proof of movement.”). Here, the jury instructions

included both the requirement that the State prove, “During the commission of

this offense, the defendant moved from one location to another” and advised the

jury that “[i]f the State has failed to prove any one of the elements, the Defendant
                                         6


is not guilty on Count IV.” (Emphasis added.) Contrary to Yancey’s assertion,

these instructions do require proof of movement.1

      Because the uniform instruction that was provided to the jury does require

proof of movement, any objection to it by counsel would have been overruled.

Counsel was not ineffective for failing to raise an objection that has no merit.

See State v. Willis, 696 N.W.2d 20, 24 (Iowa 2005) (holding counsel was not

ineffective for failing to raise an issue that has no merit). Since Yancey’s trial

attorney did not breach an essential duty, we need not address the prejudice

element of ineffective assistance. See Everett, 789 N.W.2d at 159.

      B. Decision to Impose Consecutive Sentences.

      This case is another of a long line of cases raising on appeal the issue of

whether an adequate explanation was given for imposing consecutive sentences.

Here, Yancey concedes the district court provided adequate reasoning for its

decision to impose a term of incarceration but maintains the court did not provide

adequate reasoning regarding why consecutive sentences were imposed.

      “If a person is sentenced for two or more separate offenses, the

sentencing judge may order the second or further sentence to begin at the

expiration of the first or succeeding sentence.”        Iowa Code § 901.8.        A

sentencing court must state, on the record, its reason for selecting a particular

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

Crim. P. 2.23(3)(d)).    The court must also provide reasons for imposing

consecutive sentences. Id. “A statement may be sufficient, even if terse and


1
  We conclude a reasonable juror would understand that “during the commission of the
offense” means while being armed with a handgun.
                                         7


succinct, so long as the brevity of the court’s statement does not prevent review

of the exercise of the trial court’s sentencing discretion.” State v. Hennings, 791

N.W.2d 828, 838 (Iowa 2010).

      The district court provided the following colloquy at the sentencing

hearing:

              The Court has reviewed the Presentence Investigation
      Report in this case. I do note the defendant's young age. I note
      also the defendant has prior convictions. He was sentenced to
      prison after receiving probation, which was revoked. Then—I’m
      sorry. He went to prison, got shock probation and the shock
      probation was revoked. That was back in, I believe, 2006.
              And then he picked up another charge, felon in possession
      of firearm, in 2007, two years of probation and revoked. I think that
      might be it unless there’s something else.
              2008, possession of a firearm during a drug trafficking crime,
      possession of controlled substance with intent to deliver, and given
      three years of supervised release. They were to run consecutive.
      And then we have the present offenses at this time.
              The Court finds at this time that the defendant is hereby
      adjudged guilty of the crime of—the following crimes: Assault with
      intent to inflict serious injury, in violation of the Code of lowa;
      assault on a peace officer with a weapon, in violation of the Code of
      lowa; assault while participating in a felony, in violation of the Code
      of lowa; going armed with intent, in violation of the Code of lowa;
      possession of a firearm by felon, in violation of the Code of lowa;
      and intimidation with a dangerous weapon with intent.
              The last charge, intimidation of a dangerous weapon with
      intent, is a forcible felony, and the Court has no option but to
      sentence the defendant to prison in regard to that count. In regard
      to the other counts, the Court believes that incarceration is
      appropriate due to the nature and circumstances of these offenses,
      the defendant’s past criminal history, and the need for protection of
      the community in further criminal activity by the defendant.
              In regard to the charge of assault with intent to inflect serious
      injury, the defendant is sentenced to a term of incarceration not to
      exceed two years. As to all other charges, he is sentenced to a
      term of incarceration of 15 years based upon the defendant being a
      habitual offender.
              ....
              [ ]Each of those charges shall run consecutive to each other,
      concurrent as to the charge of assault with intent to inflict serious
      injury, for a total of 75 years. Fines are hereby suspended as to
                                        8


      each and every count due to the incarceration of the defendant.
      The Court has stated that a finding of probation is not acceptable in
      order to protect the public from further criminal activity by the
      defendant and due to the serious nature and circumstances of the
      offense with regard to the use of a weapon.

      Our case law does not require the sentencing court to provide separate

rationale for its decision to impose consecutive sentences if the reviewing court

can determine that the consecutive sentences were “part of an overall sentencing

plan.” Hennings, 791 N.W.2d at 839. Our supreme court has also stated that

“[a]lthough the reasons need not be detailed, at least a cursory explanation must

be provided to allow appellate review of the trial court’s discretionary action.”

State v. Jacobs, 607 N.W.679, 690 (Iowa). At a minimum, a “terse and succinct”

explanation is required. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). In

Hennings, our supreme court characterized the district court’s sentencing

statement as follows: “[t]he court spoke at length about the information it

considered in making a sentencing determination and specifically what factors

influenced its ultimate decision.” Our supreme court further stated that “[t]his is

not a situation where the court ‘failed to give even a terse explanation of why it

imposed consecutive, as opposed to concurrent sentences.’”         Hennings, 791

N.W.2d at 838 (citing State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996)).

However, not a single word or sentence in Hennings directly expressed or

explained why consecutive sentences were imposed.

      Here, the court stated it had reviewed the presentence investigation report

and then recited the defendant’s past convictions.     The court also noted the

defendant’s young age. The court explained the “[c]ourt has no option but to

sentence the defendant to prison” for the forcible felony conviction. Although the
                                       9


record is awful thin to enable us to properly perform our review, we can discern

no difference between these facts and the facts in Hennings.2 Accordingly, we

conclude sufficient reasons were provided for the imposition of consecutive

sentences.

IV. Conclusion.

      Because we find Yancey’s trial attorney did not provide ineffective

assistance, we affirm his convictions. We also find the court provided adequate

reasoning for imposing consecutive sentences.

      AFFIRMED.




2
  See State v. Scott, 12-1531, 2013 WL2146226, at *2 (Iowa Ct. App. May 15, 2013)
(Danilson, J., concurring specially).
