Opinion
No. 3-041 / 02-0090
Filed May 29, 2003
Appeal from the Iowa District Court for Scott County, DAVID E. SCHOENTHALER, Judge.
Earl Fullenwider seeks postconviction relief, claiming he received ineffective assistance of counsel at his criminal trial on charges of possession of cocaine with intent to deliver, failure to affix a tax stamp, and felon in possession of a firearm. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Kent Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, William Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and MAHAN and HECHT, JJ.
Earl Fullenwider appeals from the trial court's decision denying postconviction relief following his conviction on multiple drug offenses and felon in possession of a firearm. He claims that the lawyers who represented him at trial on these charges and on direct appeal were ineffective. We affirm in part, reverse in part, and remand.
I. Background Facts and Proceedings.
The State's criminal case against Fullenwider was largely based on evidence obtained during the execution of a search warrant at Brandy Johnson's Davenport apartment. During this search investigators discovered Fullenwider sleeping in the apartment and a loaded gun under his side of the bed. Fullenwider's cell phone was discovered near a scale and recently cooked cocaine. Earlier surveillance indicated Fullenwider was a frequent visitor at Johnson's apartment.
Following the first day of trial Fullenwider struck a plea bargain with the State. The trial court declined to accept the plea bargain, and Fullenwider was ultimately convicted of possession of cocaine with intent to deliver while in possession of a firearm, failure to affix a drug tax stamp, and being a felon in possession of a firearm. Because Fullenwider was convicted of a class B felony, subject to a mandatory firearm enhancement, the court sentenced him to a fifty-year term of imprisonment. See Iowa Code § 124.401(1)(e) (1995). The sentence was doubled again under section 124.411(1) because Fullenwider was a repeat offender, to increase the sentence to 100 years. Fullenwider was also sentenced to two indeterminate five-year terms of incarceration based on his two class D felony convictions. All of the sentences were ordered to be served concurrently.
Fullenwider appealed his convictions, claiming the jury should have been instructed on the defense of diminished responsibility and there was insufficient evidence he was in possession of a firearm to support conviction on those counts including that element. We affirmed his convictions. See State v. Fullenwider, No. 96-856 (Iowa Ct.App. June 26, 1997).
Fullenwider filed an application for postconviction relief, claiming he received ineffective assistance from trial and appellate counsel. He claimed his attorneys were ineffective in failing to: (1) make an adequate record on the district court's rejection of a plea agreement; (2) challenge the sufficiency of the evidence concerning the cocaine possession charge; (3) raise a related federal due process claim; (4) object to a jury interrogatory; (5) object to the jury instructions; and (6) object to the court's consideration of impermissible sentencing factors. The district court denied Fullenwider's request for postconviction relief. Fullenwider appeals.
The present action is actually Fullenwider's second postconviction action. His first postconviction action was dismissed for reasons not clear from the record.
The district court determined Fullenwider was entitled to be resentenced, to allow the court to determine whether his sentence for a prior probation violation should be concurrent or consecutive to the sentences in this case. This issue is not before us on appeal.
II. Standard of Review.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a postconviction applicant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied an applicant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the applicant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
III. Plea Agreement.
As noted above, Fullenwider entered into a plea agreement with the State and attempted to enter a guilty plea on the morning of the second day of his criminal trial. Fullenwider asserts his trial counsel was ineffective because he failed to make a record of the district court's refusal to accept his guilty plea. At the postconviction hearing, trial counsel testified the trial court had a policy that a plea agreement made on the date of or during trial would be rejected. Counsel also testified he believed Fullenwider's plea was rejected because it was too late.
In State v. Hagar, 630 N.W.2d 828, 837 (Iowa 2001), the supreme court held that a district court abuses its discretion if a plea bargain is rejected "solely because it was tendered after the deadline for pleas set by the court." The court concluded:
Courts are given discretion in this area of law, and fail to exercise it by strictly adhering to a plea deadline. The benefits of strict adherence to plea deadlines do not outweigh the need for judges to exercise discretion, the deference to the discretion of prosecutors, and the rights of the defendant.Hagar, 630 N.W.2d at 837.
Fullenwider asserts that if trial counsel had made a record showing the district court refused his guilty plea solely because it was made past the plea deadline, his conviction would be reversed and the case remanded for consideration of his guilty plea. Fullenwider's argument fails because his criminal trial was in 1996 and Hagar was not decided until 2001. Generally, an attorney need not be clairvoyant and foresee future changes in the law. Vande Kop v. McGill, 528 N.W.2d 609, 613 (Iowa 1995); Morgan v. State, 469 N.W.2d 419, 427 (Iowa 1991). An attorney does not breach an essential duty by failing to predict a future change in the law. See State v. Hepperle, 530 N.W.2d 735, 740 (Iowa 1995); Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981) ("Counsel need not be a crystal gazer; it is not necessary to know what the laws will become in the future to provide effective assistance of counsel."). We conclude Fullenwider has not shown he received ineffective assistance of counsel on this issue.
VI. Preservation of Error.
The State claims Fullenwider has not preserved error on any of his remaining claims in this postconviction action. We determine the State's claims of error preservation were not raised before the district court, and are not preserved for our review. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
V. Sufficiency of the Evidence.
Fullenwider claims both trial counsel and counsel on direct appeal should have challenged the sufficiency of the evidence to prove he possessed cocaine. To resolve this issue we consider the sufficiency of the evidence presented to support a conviction of the offense in question. State v. Breitbach, 488 N.W.2d 444, 446 (Iowa 1992). There must be "such evidence as could convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt." State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). We examine the evidence in the light most favorable to the verdict. Breitbach, 488 N.W.2d at 466.
The record supports Fullenwider's conviction. Police surveillance showed Fullenwider was frequently at Johnson's apartment. He was asleep in the apartment at the time of the search. Fullenwider's cell phone was found near the crack cocaine and a scale. The crack cocaine had been cooked about one and one-half to two hours before the search. Fullenwider did not receive ineffective assistance due to trial and appellate counsels' failure to challenge the sufficiency of the evidence on this charge.
VI. Federal Due Process Claim.
Citing Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2871, 2789, 61 L.Ed.2d 560, 572 (1979), Fullenwider claims that where, as in this case, the jury's verdict is contrary to the weight of the evidence, the resulting due process violation necessitates a new trial. He accordingly claims trial and appellate counsel breached an essential duty by failing to challenge any of the jury's verdicts on this ground. We disagree.
Even if we assume counsel was obligated to raise this issue, Fullenwider cannot establish the requisite prejudice. As noted earlier, the record includes substantial evidence supporting Fullenwider's convictions. We find, for the same reasons, that the jury's verdicts are not against the weight of the evidence and affirm on this issue.
VII. Jury Interrogatory.
At trial, Fullenwider's counsel agreed to the submission of the following interrogatory: "We, the jury, find Defendant, Earl Vernal Fullenwider, Jr., was in immediate possession or control of a firearm at the time of the offense. ____Yes _____No." The interrogatory was intended to facilitate the discrete submission of Fullenwider's guilt or innocence on the felon in possession of a firearm count without disclosing his prior felony conviction to the jury. The jury's reply was also needed to determine the applicability of any sentencing enhancement related to the possession of cocaine with intent to deliver count. Fullenwider argues use of the jury interrogatory deprived him of his right to a jury trial and resulting verdict finding him guilty beyond a reasonable doubt on each element of the offenses charged.
Our supreme court has expressly repudiated the use of the foregoing interrogatory as a discrete means of submitting a felon in possession of a firearm count. State v. Owens, 635 N.W.2d 478, 483-84 (Iowa 2001). In Owens the supreme court overruled State v. Smith, 576 N.W.2d 634, 637 (Iowa Ct.App. 1998), which held a conviction for possession of a firearm as a felon by a jury interrogatory would be acceptable. Owens, 635 N.W.2d at 484. However, Smith and Owens were both decided after Fullenwider's trial. The issue then is whether Owens presented a change in the law, which defense counsel was not required to predict. See Hepperle, 530 N.W.2d at 740 (noting an attorney does not breach an essential duty by failing to predict a future change in the law).
In Owens, the supreme court relied on two earlier cases, State v. Cook, 565 N.W.2d 611, 614-15 (Iowa 1997), and State v. Walton, 311 N.W.2d 110, 113 (Iowa 1981), in rejecting the submission of a felon in possession of a firearm charge by a stipulated and special interrogatory. Owens, 635 N.W.2d at 483-84. In Walton, a 1981 case, the supreme court stated, "absent a defendant's concession or admission made of record, the State, as part of its case in chief, was required to show defendant's status as a felon." Walton, 311 N.W.2d at 113. While Cook was decided after Fullenwider's trial, it discusses Walton, and states that a defendant's felony status is an element of the crime which the State must prove. Cook, 565 N.W.2d at 615. It is from these holdings that Owens concludes:
When a prior conviction forms an essential element of the current charge, rather than merely furnishing the basis for an enhanced sentence, the jury must determine guilt on that element beyond a reasonable doubt; answering an interrogatory will not suffice. Even if the defendant stipulates to guilt on an element of an offense, the court must still instruct the jury as to the stipulation. It is from this stipulation that the jury determines a defendant's guilt beyond a reasonable doubt.Owens, 635 N.W.2d at 483-84 (citations omitted).
We conclude Owens was not a substantial change from the law prior to Smith and Fullenwider's trial counsel breached an essential duty by stipulating to submission of the felon in possession of a firearm count in this manner. We also find Fullenwider was prejudiced as a result. In the absence of a jury verdict based on proof beyond a reasonable doubt of each element of the offense charged, any resulting error, invited or otherwise, cannot be considered harmless. See Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182, 189-90 (1993). We thus conclude Fullenwider is entitled to a new trial on the charge of possession of a firearm as a felon and reverse on this issue.
We however reject Fullenwider's claims concerning the use of the interrogatory as it related to the possession of cocaine with intent to deliver while in the possession of a firearm count. Possession of a firearm under the circumstances is a sentencing enhancement. See Iowa Code § 124.401(1)(e); State v. Nickens, 644 N.W.2d 38, 40 (Iowa Ct.App. 2002). Owens specifically does not require a jury verdict where an element "merely furnish[es] the basis for an enhanced sentence. . . ." Owens, 635 N.W.2d at 483. The jury interrogatory did not invalidate Fullenwider's convictions for possession of cocaine with intent to deliver or failure to affix a tax stamp.
VIII. Jury Instructions.
Fullenwider also contends the jury instruction concerning possession of a firearm should have contained the element of "knowledge." The jury was instructed immediate possession or control of a firearm meant actual possession, which was defined as "direct physical control of something on or around his/her person. . . ." These jury instructions were approved in State v. Eickelberg, 574 N.W.2d 1, 4 (Iowa 1997) and were good law at the time of Fullenwider's trial. Moreover, we determine Fullenwider was not prejudiced by the instruction which was given. The loaded gun was found under the bed, immediately below where Fullenwider was sleeping. We concur in the district court's conclusion, "the result on the issue of Applicant's guilt or innocence on the firearm issue would not have been different regardless of the wording of the jury instruction."
In a more recent case, State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001), the supreme court specified that "to show either immediate possession or immediate control, it must be established that defendant had knowledge of the presence of the firearm." As the State pointed out at the postconviction hearing, McDowell was decided five years after Fullenwider's criminal trial.
IX. Sentence.
Fullenwider claims he received ineffective assistance from prior appellate counsel for failing to challenge the district court's imposition of an enhancement for a repeat offender under section 124.411(1). Fullenwider asserts the court abused its discretion by ordering the enhancement under the facts of this case.
Section 124.411(1) allows a court to give a sentence "not to exceed three times the terms otherwise authorized." An enhancement under section 124.411(1) is discretionary. State v. Kress, 636 N.W.2d 12, 18 (Iowa 2001); State v. Rodgers, 560 N.W.2d 585, 587 (Iowa 1997) (noting a trial court has a "spectrum of discretion" in giving an enhancement under section 124.411(1)). We find no abuse of discretion under the facts of this case. Fullenwider was under probation for a similar crime at the time of the offense, and was in possession of a loaded firearm. Fullenwider did not receive ineffective assistance due to failure to raise this sentencing issue.
Additionally, Fullenwider asserts the district court considered improper factors during his sentencing. He claims the court considered the federal sentencing guidelines, which have no application in this case. The district court stated:
The federal system is similar. The federal system now has "three strikes, you are out." They have harsh penalties and a good deal harsher than the State penalties for a long time. But these enhancements get up with what the Federal's are, and a third offense the Feds can come and it's a life sentence, so this is less than that.
Although the sentencing court mentioned the federal system, Fullenwider has not shown the court relied on the federal sentencing guidelines in imposing his sentence. Mentioning an improper factor is not objectionable; rather it is the court's reliance on an improper factor that would entitle an applicant to be sentenced. See State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990); State v. Hansen, 344 N.W.2d 725, 730 (Iowa Ct.App. 1983).
X. Summary.
We affirm in part and reverse in part and remand for further proceedings in conformity with this opinion.