Opinion
No. 04-0779.
March 16, 2005.
Appeal from the Iowa District Court for Sac County, Joel E. Swanson, Judge.
Shane Michael Carroll appeals from his sentence for possession of more than five grams of methamphetamine with the intent to manufacture. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Pamela Dettmann, County Attorney, and Earl E. Hardisty, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
I. Background Facts Proceedings
Iowa State Patrolman Bryan Beckman stopped Shane Michael Carroll for speeding on December 1, 2003, near Lake View, Iowa. Beckman quickly suspected Carroll had been operating while under the influence of an intoxicant when he noticed Carroll was profusely sweating, his head was bobbing, he had body tremors, and he was clenching his teeth. Carroll was later arrested after he failed several field sobriety tests. Subsequent searches of Carroll's car and apartment uncovered several items consistent with the manufacture of methamphetamine including empty boxes and blister packs of pseudoephedrine, coffee filters, a scale, a grinder containing crushed white powder, and a bucket containing liquid and reddish sludge weighing 77.6 grams. Carroll admitted he manufactured methamphetamine.
On December 12, 2003, the State charged Carroll by trial information with possession of more than five grams of methamphetamine with the intent to manufacture in violation of Iowa Code section 124.401(1)(b)(7) (2003) (Count I), possession of a precursor, to wit: pseudoephedrine, with the intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4)(b) (Count II), and operating a motor vehicle while intoxicated in violation of Iowa Code section 321J.2 (Count III). The district court found Carroll guilty on all three counts and sentenced him to a twenty-five-year term of imprisonment and a fine of $5000 under Count I, a five-year term of imprisonment and a fine of $1000 under Count II, and a one-year term of imprisonment and a fine of $750 under Count III. The court further ordered all sentences to run concurrently, revoked Carroll's license for 180 days, and ordered him to pay all applicable court costs and surcharges. Carroll appeals.
On appeal Carroll claims trial counsel was ineffective in failing to argue the length of his sentence under Count I, possession of more than five grams of methamphetamine with the intent to manufacture, constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution, and article I, section 17 of the Iowa Constitution.
II. Standard of Review
Generally, issues not raised in the trial court may not be raised for the first time on appeal. State v. Taylor, 336 N.W.2d 721, 726 (Iowa 1983). Nevertheless, we will consider Carroll's claim because he has attributed his failure to preserve error to ineffective assistance of counsel. State v. Ramirez, 597 N.W.2d 795, 797 (Iowa 1999). We review this claim de novo. Id. III. Cruel Unusual Punishment
To establish a claim of ineffective assistance of counsel, Carroll has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Carroll faces a strong presumption that the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). The second element 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).
An ineffective assistance of counsel claim fails if Carroll fails to establish either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). "Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). We find the record adequate to address the issue on direct appeal.
The Eighth Amendment to the United States Constitution and article I, section 17 of the Iowa Constitution prohibit cruel and unusual punishment. Generally, a sentence that falls within the parameters of a statutorily prescribed penalty does not constitute cruel and unusual punishment. State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000). We give substantial deference to the legislature in setting the penalty for crimes. Id. Only extreme sentences that are "grossly disproportionate" to the crime conceivably violate the Eighth Amendment. State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998). In deciding whether a sentence violated the Eighth Amendment, we objectively compare the sentence with the gravity of the defendant's crime. State v. Laffey, 600 N.W.2d 57, 61 (Iowa 1999). "[O]nly if such an examination allows an inference of gross disproportionality, would the court engage in a detailed consideration of the proportionality of the offense to the sentence, including a comparison of the punishment for this crime with the sentences imposed on other criminals." Id.
Carroll argues his sentence under Count I is disproportionate and cruel and unusual because a defendant caught with 4.99 grams of pure methamphetamine could receive a ten-year suspended sentence, and a defendant like himself who is caught with traces of methamphetamine suspended in a liquid weighing 5 grams or more receives a mandatory twenty-five-year prison sentence. We disagree.
Iowa Code section 124.401(1)(b)(7) makes it a class "B" felony to manufacture, deliver, or possess with the intent to manufacture or deliver:
[m]ore than five grams but not more than five kilograms of methamphetamine, its salts, isomers, or salts of isomers, or analogs of methamphetamine, or any compound, mixture, or preparation which contains any quantity of detectable amount of amphetamine, its salts, isomers, and salts of isomers.
The statutory weight under section 124.401(1)(b)(7) is "satisfied by including the weight of the liquid seized as it contained a detectable amount of methamphetamine." State v. Rivera, 614 N.W.2d 581, 584 (Iowa Ct.App. 2000). A defendant convicted under this section shall be confined for no longer than twenty-five years, and must serve a one-third mandatory minimum. See Iowa Code §§ 124.401(1)(b)(7), 124.413, 902.9(2).
Carroll's penalty is within the statutory parameters prescribed for this offense, and because the manufacture of methamphetamine is a serious crime, we cannot find the sentence was grossly disproportionate. See, e.g., Cronkhite, 613 N.W.2d at 669 (finding defendant's fifty-year prison sentence for second-degree murder was not grossly disproportionate); Laffey, 600 N.W.2d at 61 (holding defendant's consecutive sentences for sexual abuse gave rise to no inference of gross disproportionality); Lara, 580 N.W.2d at 785-86 (concluding that neither the mandatory sentence nor the eighty-five percent rule constituted cruel and unusual punishment for the defendant's first-degree robbery conviction); see also State v. Boothe, 284 N.W.2d 206, 209 (Iowa 1979) (finding defendant's sentence for manufacturing or possessing marijuana with the intent to manufacture or deliver was not cruel and unusual punishment). We accordingly find Carroll's sentence under Count I does not constitute cruel and unusual punishment and therefore, trial counsel was not ineffective in failing to raise a meritless issue. Greene, 592 N.W.2d at 29. The sentence of the district court is affirmed.