Opinion
No. 5-258 / 04-1013
Filed May 25, 2005
Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.
An applicant appeals from the denial of his application for postconviction relief. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, Gary Kendell, County Attorney, and Douglas D. Hammer, and, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Zimmer, J., and Hendrickson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Wayne Sinclair appeals following the district court's denial of his application for postconviction relief. He contends the district court erred in denying one of his claims of ineffective assistance of trial and appellate counsel, and that all prior counsel, including postconviction counsel, were ineffective for failing to challenge the fact that he was convicted of and sentenced for three counts of dominion and control of a firearm by a convicted felon. We agree with Sinclair that, under the particular circumstances of this case, all three convictions were based upon the same conduct, and thus Sinclair was impermissibly convicted of and sentenced for three separate offenses. We accordingly vacate the convictions and sentences for two of three firearm counts. The remainder of the district court's judgment entry is affirmed.
I. Background Facts and Proceedings.
On October 14, 1998, a no contact order was issued that prevented Wayne Sinclair from contacting his wife, Tammy, or coming to the family residence. However, Tammy did allow Sinclair contact with the couple's children, and on a few occasions allowed Sinclair to visit the children at the house.
On the evening of January 16, 1999, Sinclair arrived at the family residence unannounced. Tammy told Sinclair to leave. Sinclair began shouting and took a gun from his coat. He eventually put the gun back into his coat pocket. Sinclair later led Tammy into the bathroom where the couple engaged in sexual intercourse. According to Tammy, the sex was non-consensual.
Tammy then convinced Sinclair that they should take the children to the home of Sinclair's mother. After arriving at the home Tammy and Sinclair talked for a period of time. When it grew late Tammy asked Sinclair to let her take the children and leave. Sinclair allowed Tammy to leave, but insisted that the children remain at his mother's house.
Tammy called Sinclair the next morning, January 17. Sinclair stated that he would bring the children back at 3:00 p.m. that day. Tammy then contacted her family, who in turn contacted the police. The police waited for Sinclair along the highway, intending to stop the car and arrest him for violation of the no-contact order. Additional officers waited with Tammy, her father, her brother, and her uncle outside of the family residence.
Police attempted to stop Sinclair as he and the children drove toward the family home. Sinclair led police on a high-speed chase, and fired shots from his vehicle in the direction of the police and Tammy's brother. When police stopped and surrounded the car Sinclair removed the children and, with the gun pointed alternately at his own head and towards police, made his way to the family home. Sinclair broke into the home, and he and the children went inside.
Sinclair and the children remained inside the home for four days. On January 21 police convinced Sinclair to leave the home in order to speak with Tammy. Sinclair exited the home with the children. When police approached Sinclair, he drew a weapon. Sinclair was subdued and restrained by officers.
Sinclair was arrested and charged with multiple felony and misdemeanor counts. Following a bench trial he was convicted of fourteen felonies — two counts of kidnapping in the second degree, one count of attempted murder, one count of burglary in the first degree, one count of terrorism, three counts of possession of a firearm by a convicted felon, and six counts of assault on a peace officer — as well as four counts of misdemeanor child endangerment, and one count of misdemeanor eluding. Each conviction for possession of a firearm by a convicted felon was based upon Sinclair's possession of the same firearm, but upon different dates: the first for possession January 16, the second for possession on January 17, and the third for possession on January 21.
As part of its sentencing recommendation the State recommended Sinclair be sentenced to an indeterminate term not to exceed twenty-five years on one of the kidnapping convictions; that the sentences for five additional convictions, including one of the three firearm convictions, run consecutively to the kidnapping sentence; that the sentences for twelve other convictions, including the two other firearm convictions, run concurrently; and that Sinclair receive time served on the eluding conviction. The recommendation would result in a maximum indeterminate term of incarnation of seventy-two years, with a mandatory minimum of approximately forty-four years. After reviewing the State's recommendation Sinclair challenged only the recommendation for the imposition of consecutive sentences, requesting imposition of concurrent sentences on all counts.
Sinclair also objected to recommendations regarding restitution and a no contact order, but those sentencing terms are not at issue on appeal.
After hearing from both counsel and Sinclair, the court stated it had taken into consideration a number of specific factors, and "certainly finds that probation should be denied. The defendant is ordered, adjudged and decreed guilty of all the nineteen counts. . . . The defendant is sentenced as follows. . . ." The court then imposed the sentencing plan recommended by the State, which included a no-contact order of indefinite duration. In its judgment entry the court further stated:
THE COURT HAS DETERMINED: That after a review of the presentence investigation and after conversation with the Defendant, the Court does impose sentence and in determining the sentence to be imposed the Court has considered that such sentence is consistent with protection of the public, the gravity of the offense and the rehabilitative needs of the Defendant.
Sinclair appealed from his convictions for kidnapping, attempted murder, and burglary. This court affirmed those convictions in State v. Sinclair, 622 N.W.2d 772 (Iowa Ct.App. 2000). Sinclair then filed an application for postconviction relief which raised four claims, including a claim that the imposition of the no contact order was an illegal sentence, and a claim that trial and appellate counsel were ineffective for failing to challenge the district court's failure to state reasons for imposing consecutive sentences.
The district court ruled on Sinclair's petition on June 18, 2004. The court agreed that the no contact order was a void term of sentence, as it did not provide an expiration date. The court denied Sinclair's remaining claims.
Sinclair appeals. He renews his claim that trial and appellate counsel were ineffective for failing to challenge his sentences on the basis that the district court did not state reasons for the imposition of consecutive sentences. He also asserts, for the first time, that trial, appellate, and postconviction counsel were all ineffective for failing to challenge the fact that he was convicted of three counts of possession of a firearm as a convicted felon, because the three convictions were in fact one continuous offense.
II. Scope of Review.
Postconviction relief proceedings are reviewed for the correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, claims that raise constitutional issues, such as the alleged ineffective assistance of counsel, are reviewed de novo. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). Although the right to postconviction counsel is a creature of statute, a claim of ineffective assistance by postconviction counsel is also reviewed de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998).
III. Ineffective Assistance of Counsel.
To establish the ineffective assistance of his trial, appellate, or postconviction counsel, Sinclair must prove his attorney's performance fell below "an objective standard of reasonableness," and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also Collins, 588 N.W.2d at 401-02 (noting that applicant has a right to effective assistance of postconviction counsel, and that postconviction counsel's performance is also measured by the Strickland standard). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
Because neither of Sinclair's claims was raised on direct appeal, Sinclair must establish both a "sufficient reason" or "cause" for the failure to raise them, and actual prejudice. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Generally, sufficient reason is provided by the ineffective assistance of appellate counsel. Id. In order to establish that he was prejudiced by the ineffectiveness of appellate counsel Sinclair must demonstrate that he would have prevailed on the underlying claim of ineffective assistance of trial counsel, if that claim had been raised on direct appeal. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). The same is true regarding his claim of ineffective assistance of postconviction counsel. See Collins, 588 N.W.2d at 402-03 (considering ineffective assistance of trial counsel claim raised for the first time in appeal from postconviction proceedings, and noting that ineffectiveness of postconviction counsel may constitute a sufficient reason for not earlier raising issue).
Cf. Iowa Code § 814.7 (2005) (providing, effective July 1, 2004, that ineffective assistance of counsel claims can be determined in the first instance in a postconviction proceeding, even if not raised in a direct appeal).
A. Consecutive Sentences.
A district court must state on the record its reasons for imposition of a particular sentence, and failure to so is an abuse of discretion. Iowa R. Crim. P. 2.23(3)( d); State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). This includes reasons why the court imposed consecutive, rather than concurrent, sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). While the district court's explanation need not be detailed, it must be sufficient to allow this court to review the sentencing decision for the exercise of discretion. Id.
Here, prior to imposing sentence, the district court recited a number of considerations, including the State's sentencing recommendation, the possibility of rehabilitation, the protection of the public, and the nature and seriousness of the offenses. Sinclair points out that while these considerations were clearly tied to the court's decision to deny suspended sentences upon those charges for which suspended sentences were available, they were not expressly tied to the court's decision to impose consecutive sentences on five of the nineteen counts. However, the court's reasons need not be specifically tied to the imposition of the consecutive sentences. State v. Delaney, 526 N.W.2d 170, 178 (Iowa Ct.App. 1994). Rather, they may be found from the reasons expressed for the overall sentencing plan. Id. Accordingly, we look to all parts of the record to find the supporting reasons. Id.
Iowa Code section 907.3 prohibits suspended sentences for forcible felonies. Sinclair's kidnapping, attempted murder, and burglary convictions were all forcible felonies. Iowa Code § 702.11.
Significantly, neither the State nor Sinclair recommended or requested that the court suspend any of the sentences. It is clear that, in regards to incarceration, the only question before the court was that of imposing concurrent or consecutives sentences. Moreover, in the judgment entry the court provided specific reasons for the imposition of its overall sentencing plan, which included three of the reasons the court recited during the sentencing hearing: protection of the public, the gravity of the offenses, and Sinclair's rehabilitative needs.
The court's comments during the sentencing hearing, when viewed in light of the parties' positions on sentencing, and taken in conjunction with the written judgment entry, state sufficient reasons for the imposition of consecutive sentences. Thus, counsel was not ineffective for failing to challenge the court's sentencing decision. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The district court properly denied this ineffective assistance of counsel claim.
B. Multiple Punishments/Continuing Offense.
Sinclair also contends his trial counsel was ineffective for failing to challenge the fact that he was convicted of and sentenced for three counts of dominion and control of a firearm by a convicted felon, and that appellate and postconviction counsel were ineffective for failing to raise the ineffectiveness of trial counsel in this regard. Sinclair asserts the three counts allege only one continuous act, and thus the court improperly imposed three punishments for a single course of conduct. Under the particular circumstances of this case, we agree.
When multiple punishments are imposed in a single prosecution, the court's ability to impose multiple punishments is limited to that which the legislature intended. State v. Reed, 618 N.W.2d 327, 336 (Iowa 2000). Multiple punishments may be imposed where the convictions and sentences are based on distinct acts. Jacobs, 607 N.W.2d at 688. In such cases the underlying charges merely allege the same kind of conduct, and no double jeopardy problem is presented. See State v. Schmitz, 610 N.W.2d 514, 517 (Iowa 2000). However, when multiple charges are actually based upon the same conduct, only one punishment is authorized. Id. Viewing the facts of this case, we agree with Sinclair that the State has established only one act of knowing dominion and control over a firearm by a convicted felon. See Iowa Code § 724.26 (1997).
Even though both the trial information and judgment use the term "possession," the version of section 724.26 in effect at the time of the underlying acts in fact criminalizes knowing "dominion and control" over a firearm by a convicted felon. We do not find the distinction relevant, however, as our supreme court, in interpreting Iowa Code section 724.26 (1997), has used the terms interchangeably. See State v. Turner, 630 N.W.2d 601, 610-11 (Iowa 2001). We see nothing in this case that would require us to impose a stricter interpretation of dominion and control than that which can be fairly inferred from Turner.
The facts of this case demonstrate that all three counts in issue are based upon Sinclair's uninterrupted dominion and control of the same firearm over the course of six days. While we agree that it is possible for the dominion and control to be terminated, and then reinitiated, here there is no evidence that Sinclair's dominion and control over his weapon was ever interrupted. While Sinclair's use of the weapon over the six days may have varied and resulted in other viable charges, his dominion and control over the weapon did not.
Uninterrupted dominion and control over a single firearm is by its very nature a continuing act. See United States v. Horodner, 993 F.2d 191, 193-94 (9th Cir. 1993) (citing United States v. Jones, 533 F.2d 1397, 1390 (6th Cir. 1976)).
Accordingly, we conclude that, under the particular facts and circumstances of this case, where the record indicates Sinclair exercised uninterrupted dominion and control over one weapon during a six day period, that his dominion and control over the weapon was one continuous course of conduct, and may be punished only once. We further conclude that trial counsel was ineffective for failing to raise this issue at trial, because if such a claim had been raised, it would have succeeded. We therefore vacate two of the three convictions for possession of a firearm by a convicted felon.
By this decision we in no way determine whether dominion and control over a firearm by a convicted felon, pursuant to Iowa Code section 724.26 (1997), is a continuing offense. See Jacobs, 607 N.W.2d at 688 (defining continuing offense doctrine). We need not decide the question as, even if § 724.26 does not define a continuing offense, under the facts of this case Sinclair's three convictions are all based upon the same conduct, and thus subject to only one punishment. See Schmitz, 610 N.W.2d at 517.
We recognize that our decision will have little practical impact, as two of the three sentences at issue here were ordered to run concurrently to what is, at a minimum, an approximately forty-four year term of incarceration and, at a maximum, a seventy-two year term of incarceration. As a result the State urges us to adopt the "concurrent sentence doctrine," under which a court may decline to review a conviction where that conviction is not likely to have any adverse collateral consequences for a defendant. See Benton v. Maryland, 395 U.S. 784, 791-92, 89 S. Ct. 2056, 2060-61, 23 L. Ed. 2d 707, 714 (1969) (explaining doctrine). We reject the offer. All convictions carry with them the potential for collateral consequences.
As the United States Supreme Court has noted:
The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction. Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment."
Rutledge v. U.S., 517 U.S. 292, 302, 116 S. Ct. 1241, 1248, 134 L. Ed. 2d 419, 429 (1996) (citations omitted).
IV. Conclusion.
Under the facts of this case, Sinclair was subject to only one punishment for dominion and control over a firearm as a convicted felon, and counsel was ineffective for failing to challenge the multiple convictions. Accordingly, we vacate two of the three convictions and sentences imposed for possession of a firearm by a convicted felon. The remainder of Sinclair's convictions and sentences are affirmed.