State v. Gilliland ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0669
Filed January 24, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT WILLIAM GILLILAND,
Defendant-Appellant.
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Appeal from the Iowa District Court for Winneshiek County, David P.
Odekirk, Judge.
Robert Gilliland appeals his convictions for possession of
methamphetamine, third offense, possessing pseudoephedrine with intent to
manufacture, and possessing lithium with intent to manufacture. AFFIRMED.
Les M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.
Robert Gilliland appeals his convictions for possession of
methamphetamine, third offense, in violation of Iowa Code section 124.401(5)
(2017); possessing pseudoephedrine with intent to manufacture, in violation of
Iowa Code section 124.401(4)(b); and possessing lithium with intent to
manufacture, in violation of Iowa Code section 124.401(4)(f). We find the district
court did not abuse its discretion by sentencing Gilliland to five years in prison.
We preserve Gilliland’s claim of ineffective assistance of counsel for possible
postconviction proceedings. We affirm Gilliland’s convictions.
I. Background Facts and Procedures
On April 2, 2016, the Decorah Police Department received a call about a
suspicious purchase of a lye-based drain cleaner. After purchasing the lye,
Gilliland and a woman he was with left the store and drove away in a blue van. A
Decorah police officer responded to the call, located the van, and stopped it for
equipment violations. The woman was driving the van, Gilliland sat in the
passenger seat, and two young children sat in the back seats.
The woman was arrested for operating while intoxicated, and the officer
decided to impound the van. The officer asked Gilliland to exit the vehicle.
Gilliland appeared agitated, nervous, and shaky. He handed the officer a box of
Claritin-D. The officer asked Gilliland to empty his pockets, but Gilliland refused.
Gilliland reached inside his jacket and placed or moved something. The officer
noted this, and Gilliland allowed the officer to remove the item. It was an M&M
package with electrical tape along the bottom. Gilliland allowed the officer to pat
him down. The officer did and found a metal tin, which he removed from
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Gilliland’s pocket. Gilliland then revoked his consent to be searched. The officer
placed Gilliland in handcuffs, and, found a key, a pocketknife, and several
baggies containing white powder on Gilliland. When the metal tin was opened it
contained white powder residue. Both substances were later confirmed to be
methamphetamine.
Inside the van the officer found two bottles of lye-based drain cleaner, a
package of pseudoephedrine, two packages of lithium batteries, and coffee filters
with methamphetamine residue on them. Gilliland admitted he used
methamphetamine and informed the officer he did not like to buy
methamphetamine but preferred to make and use his own.
On February 21, 2017, Gilliland appeared and plead guilty to possessing
methamphetamine, third offense, possessing pseudoephedrine with intent to
manufacture, and possessing lithium with intent to manufacture. He requested
probation in order to pursue substance-abuse treatment. On April 18, Gilliland
was sentenced. The State argued for suspended concurrent five-year prison
sentences with two to five years of probation. Gilliland made the same request.
The district court noted it had considered the plea agreement, the nature
of the offense, Gilliland’s age, prior criminal record, employment, family
circumstances and “other matters outlined in the Presentence Investigation
Report.” Focusing on Gilliland’s lengthy criminal record the district court
sentenced him to five years in prison on each count to be served concurrently.
Gilliland filed his appeal on April 26.
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II. Standard of Review
If a sentence is within the statutory limits, we review a district court’s
sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,
552 (Iowa 2015). “Thus, our task on appeal is not to second-guess the decision
made by the district court, but to determine if it was unreasonable or based on
untenable grounds.” Id. at 553. “In other words, the district court did not abuse
its discretion if the evidence supports the sentence.” Id. Claims of ineffective
assistance of counsel are reviewed de novo. Ledezma v. State, 626 N.W.2d
134, 141 (Iowa 2001).
III. Sentencing
Gilliland claims the district court abused its discretion by sentencing him to
prison instead of suspending his sentence and placing him on probation.
Gilliland points out he will be less likely to receive substance-abuse treatment
while incarcerated. He also points out he will be unable to be employed and will
not be able to provide support to his two children or “pay back his debt to
society.” Gilliland additionally claims he should have been given probation and
suspended sentences as he “was expressing a desire to make a substantial
change in his life and address his need for substance abuse treatment.”
The district court listed the specific and permissible considerations used to
come to a sentencing decision, which we have set forth above. We find the
district court gave adequate reasons to sentence Gilliland to prison. The district
court’s decision was based on reasonable and valid considerations, and we find
no abuse of discretion. See Seats, 865 N.W.2d at 552.
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IV. Ineffective Assistance
Gilliland also claims trial counsel was ineffective for failing to challenge the
search and seizure. We find the record before this court is not adequate to
resolve this claim. Therefore, we affirm Gilliland’s conviction but preserve his
claim of ineffective assistance of counsel for possible postconviction-relief
proceedings. See State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001)
(“Ineffective assistance of counsel claims presented on direct appeal are typically
preserved for [postconviction-relief] proceedings to allow for a full development of
the facts surrounding the conduct of counsel.”).
AFFIRMED.