Amended May 1, 2015 State of Iowa v. Shaunta Rose Hopkins ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 13–1103
Filed March 6, 2015
Amended May 1, 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.
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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.
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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
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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).
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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.”).
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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.
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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).
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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.