State of Iowa v. Pablo Elias-Lopez

IN THE COURT OF APPEALS OF IOWA
No. 13-1203
Filed June 11, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PABLO ELIAS-LOPEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey A.
Neary, Judge.
Pablo Elias-Lopez appeals from his conviction and sentence for
possession of marijuana with intent to distribute. AFFIRMED.
Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux
City, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Patrick Jennings, County Attorney, and Amy Klocke, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
2
VOGEL, P.J.
Pablo Elias-Lopez appeals from his conviction and sentence for
possession of marijuana with intent to distribute. He asserts the district court
erred in denying his motion to exclude a State’s witness added five days before
trial, which he frames as an ineffective-assistance-of-counsel claim. He further
argues the district court abused its discretion in imposing an unreasonable
sentence. Because we conclude Elias-Lopez failed to establish prejudice with
regard to his ineffective-assistance claim, and the court did not abuse its
discretion with respect to its sentencing decision, we affirm.
Elias-Lopez was arrested on November 21, 2012, following a vehicle
search that uncovered 222.9 grams of marijuana. He was charged on November
28, 2012, with possession with intent to deliver a controlled substance as a
habitual offender, within 1000 feet of a park, in violation of Iowa Code sections
124.401(1)(d), 124.411, and 124.401(A) (2011), and failure to affix a tax stamp,
in violation of Iowa Code sections 453B.12 and 902.8. A final pretrial conference
was held on April 11, 2013, four days prior to trial, in which Elias-Lopez moved to
exclude the State’s confidential informant from testifying because the State had
not previously served notice or listed the confidential informant in the minutes of
testimony.1 The court denied the motion. Elias-Lopez deposed the informant on
the morning of April 16, the date trial was scheduled to begin.
Elias-Lopez pled guilty on April 16, 2013, to possession with intent to
deliver as a habitual offender. Shortly thereafter, Elias-Lopez filed a motion in
1
The State’s intention to call this witness resulted from the district court’s prior ruling,
excluding as hearsay a law enforcement officer’s statement as to what he had been told
by this witness.
3
arrest of judgment, contesting the plea as not knowing, voluntary, and intelligent.
A hearing was held on July 17, in which Elias-Lopez withdrew his motion, and a
sentencing hearing then proceeded. The district court sentenced Elias-Lopez to
a term of incarceration not to exceed fifteen years. Elias-Lopez appeals.
We review ineffective-assistance-of-counsel claims de novo. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006). To succeed on this claim, the
defendant must establish trial counsel breached an essential duty and he was
then prejudiced by counsel’s failure. Id. We review sentencing decisions for an
abuse of discretion. State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).
Elias-Lopez first claims the district court erred in denying his motion to
exclude the confidential informant as a witness, and trial counsel was ineffective
for failing to condition his guilty plea on the preservation of error with respect to
this issue. However, counsel was able to depose the confidential informant
before the commencement of trial. Given this fact, as well as the lack of an
assertion the outcome of the proceeding would have been different but for
counsel’s failure, Elias-Lopez has failed to set forth an argument on which we
could make a finding of prejudice. See Ledezma v. State, 626 N.W.2d 134, 142
(Iowa 2001) (holding when the defendant’s claim lacks prejudice, we may
dispose of the claim on that ground alone). Moreover, our rules of criminal
procedure do not allow a defendant to enter a conditional plea of guilty. See
Iowa R. Crim. P. 2.8(2)(a). Therefore, counsel did not breach an essential duty
by not conditioning Elias-Lopez’s guilty plea on a preservation of error issue, and
Elias-Lopez’s ineffective-assistance claim fails.
4
Elias-Lopez next asserts the district court abused its discretion in ordering
a term of incarceration as opposed to probation, for which Elias-Lopez argued at
sentencing. He claims the court gave undue weight to his criminal history, rather
than considering all the pertinent factors set forth in Iowa Code section 901.5.
During the sentencing hearing, the court set forth the following reasoning
for imposing its sentence:
I realize what you say, [defense counsel], is something that
I’ve noticed and experienced as well as with relationships of young
men between 18 and 25. The hard part about this case is that the
criminal history is so significant, and I can’t ignore that because I
have no way of telling whether Mr. Lopez has what it takes to be
successful this time on probation. I’m going to follow the
recommendation of the presentence report. I realize you have a
serious usage addiction problem and it somehow, sometime has to
get under control, and it’s—I don’t like sending someone to prison,
especially someone as young as you. But unfortunately your
criminal history and the recommendations and the—my belief is
you won’t be successful on probation.
....
The court has considered all of the sentencing options in this
case and believes that the sentence it’s going to impose is going to
provide the maximum opportunity for the rehabilitation of Mr. Lopez.
It will protect the community from further offenses by Mr. Lopez and
others who might be inclined to commit similar offenses. I’ve
considered the presentence report to the extent of the parties’
agreement. I have considered the defendant’s comments and
comments of counsel today. And if things were different, if we
didn’t have such an extensive criminal history, I would clearly
consider other options. And if I had another good option that I
thought would work, I would clearly consider it. I do believe you’ve
reached a point in your life, and I don’t know when that is, it’s
different with everyone that life changes, your perspective changes
on things and hopefully you’ve reached that point but if not, you will
by the time you get released this point in time. But, nevertheless,
because the defendant has pled guilty and admitted he’s a habitual
offender, the period of incarceration from five years from the
original sentence under Count I is now enhanced to a period of
incarceration not to exceed . . . 15 years . . . . So no fine or
surcharge is imposed, but the period of incarceration is imposed. It
is not suspended.
5
The court clearly explained its reasoning in declining to suspend the term of
incarceration, and it did not give undue weight to Elias-Lopez’s criminal history.
Rather, it considered the appropriate factors under Iowa Code section 901.5.
See generally State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006).
Consequently, we find no abuse of discretion in this decision.
Having considered Elias-Lopez’s arguments, we affirm both his conviction
and sentence.
AFFIRMED.