Opinion
No. 5-940 / 04-2042
Filed April 12, 2006
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Nasser Sahir appeals his conviction for stalking. CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine O'Connell Corken Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Nasser Sahir appeals his conviction for stalking, a class D felony, in violation of Iowa Code section 708.11(3)(b)(1) (2001). First, he argues the district court erred when it did not submit the issue of his protective orders to the jury at a sentencing trial. If we find this claim was not preserved, Sahir argues his counsel was ineffective by failing to object. Second, he argues his trial counsel inadequately objected to alleged prosecutorial misconduct. We affirm Sahir's conviction, vacate his sentence, remand for resentencing, and preserve his ineffective assistance of counsel claim based on prosecutorial misconduct for any postconviction relief proceedings.
I. Background Facts and Proceedings
Nasser and Carol Sahir were married for nearly thirteen years. After they decided to divorce, Carol and the couple's three daughters moved into an apartment. Sahir began following Carol and parking outside her apartment and workplace to watch her. Carol obtained three protective orders against Sahir. Sahir was eventually charged with stalking in violation of section 708.11(3)(b)(1) and attempted burglary in the third degree in violation of section 713.2 and 713.6B. The trial information charging Sahir with stalking also noted he was subject to a protective order.
Sahir complains of two issues occurring at his trial. First, the trial court determined that the existence of the protective orders was a sentencing enhancement criterion, rather than an element of the offence of stalking. As a result, the court removed the element requiring the State to prove that Sahir was subject to protective orders from the jury instructions. Though given the opportunity, neither counsel objected. Later, the court's order concerning the jury's verdict noted Sahir testified to the existence of the protective orders. It requested that counsel make a written filing if the protective orders were in dispute for purposes of sentencing. However, the protective orders were not disputed. Sahir argues the orders should have been submitted for a jury determination.
During trial, Sahir both testified and stipulated to the existence of the orders.
Second, his counsel did not object to several comments the prosecutor made during Sahir's cross-examination and the closing argument. Sahir alleges these comments were prosecutorial misconduct.
The court sentenced Sahir for stalking committed while a civil protective order was in existence, a class D felony in violation of section 708.11(3)(b)(1). Sahir appeals his conviction and sentence.
II. Standard of Review
Sahir alleges violations of his rights under the Sixth and Fourteenth Amendments to the United States Constitution, and article one, section ten, of the Iowa Constitution. We review constitutional claims de novo. In re Detention of Hodges, 689 N.W.2d 467, 470 (Iowa 2004). We give deference to the district court's credibility determinations, but are not bound by its fact determinations. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
III. Merits
A. Protective Orders
We first clarify what this appeal is not about. Sahir is not appealing the jury's verdict of guilty to the offense of aggravated misdeameanor stalking. The district court found, and Sahir does not contest, the existence of a protective order is not an element of stalking but is instead a factor of sentence enhancement. State v. Beecher, 616 N.W.2d 532, 538 (Iowa 2000). Therefore, Sahir does not contest the district court's refusal to submit the issue of the protective order to the jury at the initial trial. As such, the jury's verdict of guilty to the offense of stalking must stand unless subsequently reversed on the ineffective assistance of counsel grounds raised by the defendant.
The crux of Sahir's appeal is that the district court erred in failing to submit the sentencing enhancement issue to a jury at a second trial proceeding dealing only with sentencing. The problem with that argument is that Sahir failed to take any steps whatsoever to preserve this issue for appeal.
Sahir relies on Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), to argue the district court erred when it failed to submit the issue of the existence of protective orders to the jury. This, however, is the first time Sahir has raised this argument. At trial, he (1) testified to the existence of the orders; (2) stipulated in writing to the existence of the orders; (3) agreed with the district court that the jury need not be instructed on the orders; and (4) failed to raise any concern when the district court gave him ample notice it would be considering the orders for sentence enhancement. Further, no steps were taken to bring the issue to the attention of the district court at sentencing. In short, the existence of the orders was never at issue during either the initial trial or the sentencing.
Further, Sahir's challenge is not to the court's use of discretion during his sentencing, nor to the legality of the sentence itself. If either of those challenges were at issue, Sahir would not have had to preserve his claim. See State v. Wise, 697 N.W.2d 489, 492 (Iowa 2005) (concluding no preservation was necessary where conditional sentence was not authorized by statute and therefore void, but citing State v. Cooley, 587 N.W.2d 752 (Iowa 1998)); State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001) (concluding no preservation was necessary where sentence was contrary to the Code and therefore void); State v. Oritz, 618 N.W.2d 556, 561-62 (Iowa 2000) (finding no preservation was necessary where sentence was based on improper interpretation of the statute and therefore void); State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999) (concluding no preservation was necessary for illegal sentence where trial court applied statute retrospectively rather than prospectively, thus sentencing defendant for improper enhancements); Cooley, 587 N.W.2d at 754 (concluding no preservation was necessary where defendant would have had to question the court's discretion at the time of sentencing); State v. Boltz, 545 N.W.2d 9, 10 (Iowa 1995) (finding error was preserved when defendant raised on appeal the issue of the court's failure to articulate reasons for her discretionary sentence); State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994) (rejecting rule that defendant had to object during sentencing when sentence imposed was discretionary); State v. Stratton, 519 N.W.2d 403, 405 (Iowa 1994) (finding no preservation necessary where court failed to merge offenses for the purposes of sentence as required by the Code); State v. Austin, 503 N.W.2d 604, 606-07 (Iowa 1993) (concluding no preservation was necessary where court missed amendments to Code that changed sentencing); State v. Young, 292 N.W.2d 432, 435 (Iowa 1980) (concluding defendant need not preserve error for an illegal sentence); State v. Wilson, 294 N.W.2d 824, 826 (Iowa 1980) (finding error preservation unnecessary where defendant had no opportunity to object to district court's failure to include reasons for sentencing in sentencing order); and State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980) (same); see also Iowa R. of Crim. P. 2.24(5)( a) (stating an illegal sentence may be corrected at any time).
Instead, Sahir asserts a procedural constitutional claim to a legal sentence. See Schriro v. Summerlin, 542 U.S. 348, 353-55, 124 S. Ct. 2519, 2523-24, 159 L. Ed. 2d 442, 448-50 (2004) (noting the Sixth Amendment right to have a jury find sentence enhancements is properly characterized as a procedural right). He is required to raise such a claim with the district court. See State v. Ramirez, 597 N.W.2d 795, 797 (Iowa 1999) (denying defendant's cruel and unusual punishment challenge because he failed to bring it in the trial court, but reviewing the challenge through ineffective assistance); State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (noting that a challenge to a sentence imposed in accordance with the law is governed by normal error preservation and reviewing defendant's constitutional claim through ineffective assistance); State v. Hochmuth, 585 N.W.2d 234, 237 (Iowa 1998) (finding defendant's equal protection claim not preserved because it was not raised below); State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (finding sentence was not illegal but mandatory and, for preservation purposes, constitutional challenge had to be made before the trial court); State v. McCright, 569 N.W.2d 605, 608 (Iowa 1997) (noting error preservation does not apply to illegal sentences, but that a sentence is not void even though it may be subject to a constitutional challenge); State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995) (refusing to entertain defendant's constitutional double jeopardy challenge but reviewing the legality of the sentence through Iowa's statutory equivalent of double jeopardy). Because Sahir failed to raise the issue below, we cannot review it. Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002); McCright, 569 N.W.2d at 607.
Sahir argues that because the jury instructions were in his favor, he had no duty at the time to object. State v. Roe, 642 N.W.2d 252, 255 (Iowa 2002). However, because the trial court also informed Sahir the orders were a sentencing consideration, Sahir had notice that the orders would be used against him. Even at sentencing, when the use of the orders was not in his favor, Sahir failed to object. To address the issue now would violate the "fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Meier, 641 N.W.2d at 537.
In the alternative, Sahir asks that we examine his claim through ineffective assistance of counsel. He argues his counsel was ineffective when he failed to object to the district court's failure to submit the issue of the protective orders to a jury at the time of sentencing.
In order to show ineffectiveness of counsel, Sahir must show not only that his counsel breached an essential duty, but also that the breach prejudiced Sahir's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In reviewing Sahir's claim, we are to consider the totality of the evidence. Id. at 695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. The test we employ for the first element is objective: whether counsel's performance was outside the range of normal competency. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App. 1997). We start with a strong presumption that counsel's conduct was within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 687, 104 S. Ct. at 2052, 80 L. Ed. 2d at 694. The test for the second element is whether there is a reasonable probability that, without counsel's errors, the outcome of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Id.; Kone, 557 N.W.2d at 102. We only presume prejudice if counsel completely fails to subject the prosecution's case to meaningful adversarial testing. United States v. White, 341 F.3d 673, 678 (8th Cir. 2003).
Generally, we decline to decide ineffective assistance of counsel claims on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Instead, we preserve them for postconviction relief proceedings. Id. This practice ensures both that an adequate record of the claim may be developed and that the attorney charged with ineffectiveness may have an opportunity to respond. Id. We will only decide an ineffectiveness claim on direct appeal in limited situations. First, if the record shows that the claimant cannot prevail as a matter of law, we will affirm the conviction without preserving the ineffective assistance claim. State v. Graves, 668 N.W.2d 860, 869 (2003). Second, "if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial." Id. For example, we may decide the claim if counsel's performance was so glaringly incompetent we are able to determine so based on the record before us. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We have also decided the claim where the trial court has already addressed the issue. See State v. Poyner, 306 N.W.2d 716, 719-20 (Iowa 1981).
It has become well-settled law that Fifth Amendment due process and the Sixth Amendment right to a jury trial require any fact tending to enhance a defendant's sentence be submitted to a jury and found beyond a reasonable doubt. Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S. Ct. 1215, 1224 n. 6, 143 L. Ed. 2d 311, 326 n. 6 (1999). The United States Supreme Court intimated as much in 1975, when it refused to allow Maine to redefine elements of a crime as facts going to sentencing in order to avoid proving them beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 698-703, 95 S. Ct. 1881, 1889-92, 44 L. Ed. 2d 508, 519-22 (1975).
The specter of the Fifth and Sixth Amendment guarantees rose again in McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S. Ct. 2411, 2417, 91 L. Ed. 2d 67, 77-78 (1986). There, the Court rejected the petitioner's claim that any fact predicating a minimum sentence had to be found beyond a reasonable doubt, but observed its decision would be different had the fact "exposed [petitioner] to greater or additional punishment." McMilllan, 477 U.S. at 88, 106 S. Ct. at 2417, 91 L. Ed. 2d at 78; see also Apprendi, 530 U.S. at 485-87, 120 S. Ct. 2360-61, 147 L. Ed. 2d 451-53.
Any doubt was resolved in Jones v. United States. The Court plainly stated that, absent a waiver, "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact . . . that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Jones, 526 U.S. at 243 n. 6, 119 S. Ct. at 1224 n. 6, 143 L. Ed. 2d at 326 n. 6.
Apprendi further substantiated the principle. In that case, the Court reviewed the history of the jury trial right. It ultimately concluded that authorities dating from Blackstone to the present support the standard enunciated in Jones. According to Apprendi, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 489, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455.
The importance of the Sixth Amendment right to have a jury determine the facts leading to sentence enhancement was solidified in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In Ring, the Court struck down part of Arizona's capital sentencing scheme that allowed judges to determine the facts that elevated a life sentence to a death sentence. Ring, 536 U.S. at 609, 122 S. Ct. at 2443, 153 L. Ed. 2d at 576-77. Blakely reversed a Washington state case where the defendant was sentenced to three years beyond the statutory maximum based on the judge's finding he had acted with "deliberate cruelty." Blakely, 542 U.S. at 313-14, 124 S. Ct. at 2543, 159 L. Ed. 2d at 420. Finally, Booker concluded the Federal Sentencing Guidelines violated the Sixth Amendment insofar as they allowed a defendant to be sentenced based on a judge's determination of a fact not found by a jury. Booker, 543 U.S. at 242-44, 125 S. Ct. at 755-56, 160 L. Ed. 2d at 650.
Our supreme court adopted Apprendi in State v. Jacobs, 644 N.W.2d 695 (2001). Nearly forty years before, however, our state legislature required prior convictions used as sentence enhancements to be determined by a jury. State v. Wessling, 260 Iowa 1244, 1259, 150 N.W.2d 301, 310 (1967). Iowa Rule of Criminal Procedure 2.19(9) requires, after conviction on the primary offense, a separate jury trial to determine any prior convictions alleged in the indictment. Though rule 2.19(9) was adopted to prevent unfair prejudice against the defendant, it nonetheless requires a jury to find the prior conviction, not a judge acting alone. Wessling, 260 Iowa at 1259-60, 150 N.W.2d at 310.
The State argues that since Sahir admitted he was subject to the protective orders, he cannot show the prejudice requisite to his ineffective assistance claim. Apprendi indicates that, given procedural safeguards are present, a defendant may in fact waive the right to have a jury determine sentence enhancements. Apprendi, 530 U.S. at 488, 120 S. Ct. at 2361-62, 147 L. Ed. 2d at 453. The Court explained the waiver further in Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 417-18 (2004), concluding:
[N]othing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty. Even a defendant who stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial.
(citations omitted). Booker also acknowledged that a defendant could be sentenced based on admitted facts. United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621, 658 (holding "[a]ny fact . . . which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt").
We note that Blakely was decided just after Sahir's trial, but five months before his sentencing. Booker was decided nearly six months after Sahir's trial and about a month after his sentencing. We therefore do not rely on those cases for any new law they might have established, but instead for their restatements of the principles outlined in Apprendi.
There is a problem with the State's conclusion, however. In Iowa, Apprendi's acknowledgment of "procedural safeguards" and Blakely's caution about procuring "appropriate waivers" are given real substance. According to rule 2.19(9), "if the defendant affirms the validity of the prior convictions, then the case proceeds to sentencing." State v. Kukowski, 704 N.W.2d 687, 692 (2005). That, however, is not the end of the proceeding. Even if the defendant acknowledges the prior convictions, the court must determine whether the defendant's admission is intelligent and voluntary. As the supreme court recently stated in Kukowski,
We note Kukowski was also decided after Sahir's initial trial. We rely on it only insofar as it succinctly restates established Iowa law on the acceptance of admissions for sentencing purposes.
[a]n affirmative response by the defendant under the rule, however, does not necessarily serve as an admission to support the imposition of an enhanced penalty as a multiple offender. The court has a duty to conduct a further inquiry, similar to the colloquy required under rule 2.8(2), prior to sentencing to ensure that the affirmation is voluntary and intelligent.
Id. at 692 (citations omitted).
Though the colloquy required under rule 2.8(2) is not expressly required in rule 2.19(9), we have consistently required some indication that the defendant had some knowledge of the ramifications of admitting to a prior conviction. In fact, the supreme court has acknowledged that "a defendant's admission of prior felony convictions which provide the predicate for sentencing as an habitual offender is so closely analogous to a plea of guilty that it is appropriate to refer to our rules governing guilty pleas." State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989); see also State v. Oetken, 613 N.W.2d 679, 687 (Iowa 2000) (noting trial courts have a "duty to inform the defendant as to the ramifications of an habitual offender adjudication"); State v. Bumpus, 459 N.W.2d 619, 625 (Iowa 1990) (recognizing "our rules governing guilty pleas should be applied" to a defendant's admission of prior convictions); State v. McBride, 625 N.W.2d 372, 374-75 (Iowa Ct.App. 2001) ("[T]rial courts have a duty to ensure that defendants knowingly and voluntarily stipulate to having prior convictions. . . . In order to knowingly stipulate, a defendant should have an adequate grasp of the implications of his or her stipulation.").
We see no difference between a defendant stipulating to prior convictions that will enhance a sentence upon conviction and a defendant stipulating to other facts that will enhance a sentence upon conviction. Both are admitting a fact that will increase a sentence beyond the statutory maximum. In the latter case, where it may be more difficult for the State to prove the existence of the fact, it is especially important the defendant is aware of the ramifications of an admission. Logic persuades us the same protections afforded to a defendant who admits a prior conviction extend to a defendant who admits other facts that will enhance a sentence.
The trouble with Sahir's case is therefore twofold. First, under Apprendi, the jury never determined the existence of the protective order at a second sentencing trial. The existence of the protective order elevated his conviction from misdemeanor stalking to class D felony stalking. Though jurors knew of the protective orders, the fact was never submitted for their determination beyond a reasonable doubt. The result of the court's subsequent elevation made him subject to additional and greater punishment than that to which he would have been subject given the facts determined by the jury. In other words, the jury only found facts sufficient to convict and sentence Sahir for misdemeanor stalking.
Second, no "appropriate waiver" was ever procured from Sahir. Though he may have admitted the presence of the protective orders, nothing in the record indicates he was aware of the ramification of the admission. See, e.g., Oetken, 613 N.W.2d at 688 (noting the ramifications of an enhanced sentence were discussed at length during allocution). Nor did Sahir ever consent to judicial fact finding concerning the issue. The district court has a duty to conduct a further inquiry prior to sentencing to ensure that a defendant's decision concerning the necessity of a second trial is voluntary and intelligent. Kukowski, 704 N.W.2d at 692. Any inquiry concerning the necessity of a second trial should have been conducted in open court. Id.
When the district court proposed considering the protective orders as sentencing enhancements without presenting them to the jury, Sahir's counsel had the option of at least two objections: at the time of trial, the established right to have a jury determine the facts requiring a sentencing enhancement was well-settled and the concern of accepting unexamined a defendant's admission was well-documented. The sentence Sahir received, a felony, is significantly greater than the sentence he would have received, a misdemeanor, had the jury's conviction stood alone. As a result, we must conclude Sahir was prejudiced as a result of his attorney's failure to object.
B. Prosecutorial Misconduct
Again, in order to show his counsel's performance was ineffective with respect to the alleged prosecutorial misconduct, Sahir must show (1) his counsel's performance was deficient and (2) that deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Neither of the exceptions to the rule about preserving ineffective assistance claims discussed above applies here. Sahir claims his attorney did not adequately object to what he alleges was prosecutorial misconduct. While we have the transcript from the trial, we do not have Sahir's attorney's response to these allegations. As a result, the record is not complete enough for us to make a decision as to the attorney's ineffectiveness. We preserve this claim for any postconviction proceedings Sahir may wish to commence.
IV. Summary
Sahir presents no other basis on which to reverse his conviction. His attorney's ineffectiveness goes only to his sentencing. As a result, we affirm Sahir's stalking conviction, but remand the case for sentencing proceedings consistent with this opinion. Sahir's ineffective assistance claims stemming from alleged prosecutorial misconduct are preserved for any postconviction relief proceedings.