Opinion
No. 04-1002.
March 16, 2005.
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
Michael Brustkern appeals his sentences on several drug-related charges. AFFIRMED IN PART AND VACATED IN PART.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
I. Background Facts Proceedings
Based on conduct occurring on April 10, 2003, Michael Brustkern was convicted on the following counts: (I) possession of methamphetamine with intent to deliver, in violation of Iowa Code section 124.401(1)(b) (2003); (II) manufacture of methamphetamine, in violation of section 124.401(1)(b); (III) conspiracy to manufacture methamphetamine, in violation of section 124.401(1)(b)(7); (IV) failure to affix a drug tax stamp, in violation of section 453B.12; (V) possession of a precursor (pseudoephedrine), in violation of section 124.401(4); (VI) possession of a precursor (lithium), in violation of section 124.401(4); and (VII) possession of a precursor (anhydrous ammonia), in violation of section 124.401(4).
On October 19, 2003, while Brustkern was on pre-trial release, he engaged in similar conduct, which resulted in his convictions on these counts: (I) conspiracy to manufacture methamphetamine, in violation of section 124.401(1)(b); (II) possession of methamphetamine with intent to deliver, in violation of section 124.401(1)(c); (III) possession of a precursor (pseudoephedrine), in violation of section 124.401(4); and (IV) possession of a precursor (lithium), in violation of section 124.401(4).
Brustkern had previously been convicted in 1979 for distribution of a controlled substance to a minor. For the first three counts relating to the April 2003 charges, the State sought an enhanced sentence under section 124.411, which provides that for a second or subsequent offense under chapter 124, a person "may be punished by imprisonment for a period not to exceed three times the term otherwise authorized, or fined not more than three times the amount otherwise authorized, or punished by both such imprisonment and fine."
On the first three counts relating to April 2003, Brustkern was sentenced to a term of imprisonment not to exceed seventy-five years on each count, to be served concurrently. A mandatory minimum of one-third of the sentence was imposed. Brustkern was also sentenced to a term of imprisonment not to exceed five years on each of the other four counts relating to April 2003, all to be served concurrently to the seventy-five year sentence.
In addition, Brustkern was sentenced to a term of imprisonment not to exceed twenty-five years on count I of the October 2003 charges. He was sentenced to a term of imprisonment not to exceed ten years on count II, and five years each on counts III and IV. All of the sentences in the second case are to run concurrent to one another, and to run concurrent to the sentences in the first case. Brustkern appeals his sentences.
II. Merger of Sentences
Brustkern claims his sentences on count II, manufacturing methamphetamine, and count III, conspiracy to manufacture methamphetamine, arising from the April 2003 charges, should be merged. He points out that section 706.4 provides, "A person may not be convicted and sentenced for both the conspiracy and for the public offense." The State agrees that the imposition of individual sentences for counts II and III is illegal. See State v. Maghee, 573 N.W.2d 1, 7 (Iowa 1997) (finding defendant should not be sentenced for a public offense and conspiracy to commit the same offense). We determine Brustkern's sentence on count III, the conspiracy offense, should be vacated. Id. (noting a conspiracy sentence may be severed without disturbing the balance of the sentence).
III. Ineffective Assistance
Brustkern contends he received ineffective assistance because his trial counsel failed to argue that sentencing him under the enhanced sentencing provisions of section 124.411 constituted cruel and unusual punishment. 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 defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
The Eighth Amendment of the United States Constitution prohibits "cruel and unusual" punishment, and this prohibition is applicable to the states through the Fourteenth Amendment. See Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S. Ct. 2392, 2398, 69 L. Ed. 2d 59, 67-68 (1981); State v. Lara, 580 N.W.2d 783, 784 (Iowa 1998). A similar provision is found in Article I, section 17 of the Iowa Constitution. State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000).
Punishment is considered "cruel and unusual" if it involves torture or other barbarism, or is "so excessively severe that it is disproportionate to the offense charged." State v. Rubino, 602 N.W.2d 558, 564 (Iowa 1999). Because we give substantial deference to the legislature in setting criminal penalties, a sentence violates the federal or State constitutions only if it is extremely or grossly disproportionate to the crime. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998); Lara, 580 N.W.2d at 785; see also Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L. Ed. 2d 836, 871 (1991) (noting that a proportionality analysis should be used only "in the rare case when a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality.").
If a sentence is not grossly disproportionate, our analysis is ended. State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000). In a rare case of gross disproportionality, we employ a three-prong test established by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 291, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637, 649-50 (1983).
Under this test, we consider (1) the gravity of the offense in relation to the harshness of the penalty; (2) the severity of the sentence when compared to sentences imposed for similar crimes the same jurisdiction; and (3) the severity of the sentence when compared to sentences imposed for similar crimes in other jurisdictions. Solem, 463 U.S. at 291, 103 S. Ct. at 3010, 77 L. Ed. 2d at 649-50.
Brustkern apparently concedes that he is unable to show his sentences are grossly disproportional under recent United States Supreme Court decisions analyzing the Eighth Amendment. See Lockyer v. Andrade, 538 U.S. 63, 77, 123 S. Ct. 1166, 1176, 155 L. Ed. 2d 144, 159 (2003) (finding that an enhanced penalty for a "third-strike" defendant did not clearly violate the Eighth Amendment); Ewing v. California, 538 U.S. 11, 24, 123 S. Ct. 1179, 1187, 155 L. Ed. 2d 108, 119 (2003) (noting the Court has a longstanding tradition of deferring to state legislatures in making and implementing criminal sentences). He argues instead that these decisions are not useful in deciding whether his sentence constitutes "cruel and unusual" punishment under the Iowa Constitution.
Brustkern asserts the sentences in his case are cruel and unusual because he is forty-five years old, and will be at least seventy when he is eligible for parole. In order to determine whether there is gross disproportionality, we use an objective test. Rubino, 602 N.W.2d at 563. We do not make an individualized assessment of severity, such as considering a defendant's age. See State v. Laffey, 600 N.W.2d 57, 61-62 (Iowa 1999).
Brustkern also asserts the State is "skirting" the Double Jeopardy Clause by obtaining an additional penalty against him based on his 1979 conviction. We have previously determined that the use of previous felony convictions in a habitual offender determination does not constitute cruel and unusual punishment. See State v. Snyder, 426 N.W.2d 662, 663 (Iowa Ct.App. 1988). We note that there is nothing cruel or unusual about punishing a person who has committed two crimes more severely than a person who has committed only one crime. See State v. August, 589 N.W.2d 740, 744 (Iowa 1999).
We determine Brustkern has failed to show he received ineffective assistance due to his counsel's failure to argue that these sentences violated the federal or State prohibitions against "cruel and unusual" punishment. We affirm Brustkern's sentences.