IN THE COURT OF APPEALS OF IOWA
No. 13-1103
Filed July 16, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHAUNTA HOPKINS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.
A defendant challenges her resentencing for several drug convictions.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Brianna Shriver, Student Legal Intern, John Sarcone, County Attorney,
and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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TABOR, J.
The questions in this appeal are whether the district court abused its
discretion in resentencing Shaunta Hopkins for several drug convictions and
whether Hopkins’s counsel rendered ineffective assistance. First, Hopkins
contends the court abused its discretion by relying too much on the nature of the
offenses and by failing to consider other applicable sentencing factors,
particularly her efforts at rehabilitation. Second, Hopkins claims counsel was
remiss in failing to object to the use of an outdated presentence investigation
(PSI) report. Given the substantial deference we accord sentencing decisions,
we conclude the district court did not abuse its discretion. We reject the claim of
ineffective assistance because Hopkins does not show counsel failed to perform
an essential duty resulting in prejudice.
I. Background Facts and Proceedings
On the morning of May 4, 2011, police officers executed a search warrant
at Hopkins’s home in Des Moines. The search revealed individually packaged
one-gram units of crack cocaine throughout the house, crack cocaine between
the mattresses of her bed, plastic baggies in the living room, a red notebook
listing Hopkins’s name among other individuals, several cell phones, cell phone
photographs of Hopkins holding cash and a gun, two scales, $2025 in cash, and
fifty-one pills that Hopkins claimed to be the controlled substance known as
ecstasy. Testing later determined they were actually caffeine pills. During this
search, Hopkins admitted she sold crack cocaine and also admitted she had
accompanied her boyfriend, Kiko Simmons, on about four occasions while he
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sold drugs. When the officers searched other homes in Des Moines, they
discovered drugs and drug-related items, as well as cell phones with Hopkins as
a contact.
On May 27, 2011, the State charged Hopkins with conspiracy to deliver
crack cocaine, possession of crack cocaine with intent to deliver, failure to
possess a tax stamp for crack cocaine, conspiracy to deliver a simulated
controlled substance, and possession of a simulated controlled substance with
intent to deliver. See Iowa Code §§ 124.401(1)(b)(3), 124.401(1)(c)(3),
124.401(1)(c)(8), 124.401(5), 453B.3, 453B.12 (2011). Following a trial in
October 2011, a jury found Hopkins guilty on all charges.
The court ordered a PSI report. The December 12, 2011 report indicated,
among other things, Hopkins was twenty-three years old, she dropped out of high
school while in eleventh grade after having been suspended twice, she had a
pattern of negative peer relationships, she used drugs and alcohol and did not
perceive her use as problematic or as calling for treatment intervention, she had
no prior criminal history, and she had little employment history. The PSI report
recommended Hopkins receive the maximum-authorized prison sentence and be
required to participate in any treatment or programming recommended by her
correctional treatment team.
On December 19, 2011, the court sentenced Hopkins to indeterminate,
concurrent prison terms of twenty-five years (conspiracy to deliver a controlled
substance), ten years (possession of a controlled substance with intent to
deliver), five years (failure to possess a tax stamp), ten years (conspiracy to
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deliver a simulated controlled substance), five years (possession of a simulated
controlled substance with intent to deliver), and six months (possession of a
controlled substance). Hopkins appealed. On November 15, 2012, this court
ruled the evidence was insufficient to support her conviction for conspiracy to
deliver a simulated controlled substance and affirmed her other convictions.
State v. Hopkins, No. 11-2083, 2012 WL 5537213 (Iowa Ct. App. Nov. 15, 2012).
We remanded to the district court for dismissal of the conviction and
resentencing. See id.
Before resentencing, Hopkins earned her high school diploma, gained
employment at the prison kitchen and laundry room, received numerous class
certificates, and became involved in a treatment program. While this information
was not included in an updated PSI, it was provided to the district court by
Hopkins’s attorney. On June 26, 2013, the court resentenced Hopkins and cited
both the PSI report and Hopkins’s subsequent successes. The court dismissed
the conspiracy to deliver a simulated controlled substance conviction, and due
largely to the severity of the remaining crimes, the court ordered Hopkins to
serve an otherwise identical sentence. Hopkins again appeals and asks us to
reverse and remand with directions to the Department of Corrections to create an
updated PSI. She also seeks to be resentenced by a different judge.
II. Standard of Review
We review sentencing issues for the correction of legal error. State v.
Morris, 416 N.W.2d 688, 689 (Iowa 1987). If a sentence is within the statutory
limits, we review it for an abuse of discretion. State v. Neary, 470 N.W.2d 27, 29
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(Iowa 1991). Abuses of discretion occur “when the court exercises its discretion
on grounds clearly untenable or to an extent clearly unreasonable.” State v.
Barnes, 791 N.W.2d 817, 827 (Iowa 2010).
Because claims of ineffective assistance of counsel are constitutional
challenges, we review de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa
2010). De novo review requires “independent evaluation based on the totality of
the circumstances as shown by the entire record.” State v. Howard, 509 N.W.2d
764, 767 (Iowa 1993).
While claims of ineffective assistance of counsel are normally preserved
for postconviction-relief proceedings to allow for an adequate record of the claims
to be developed and to allow the attorney an opportunity to respond to the
claims, State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002), we may resolve a
claim on direct appeal if the record is adequate. State v. Johnson, 784 N.W.2d
192, 198 (Iowa 2010). We see no reason to delay the resolution of the PSI issue
in this case.
III. Discussion
A. District Court Abuse of Discretion
We first consider whether the district court’s conduct in resentencing
Hopkins amounted to an abuse of discretion. Hopkins contends the court failed
to consider all requisite factors—particularly those arising after the initial
sentencing—and the court instead relied too heavily on the nature of the crimes.
The nature of an offense is a proper sentencing factor, but no single factor
can be “solely determinative.” State v. McKeever, 276 N.W.2d 385, 387 (Iowa
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1979). As Hopkins contends, the district court concentrated on the nature of the
crimes in making its sentencing decision. Importantly, this was not the only
factor the court considered.
Citing State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002), Hopkins
stresses the district court erred in not considering her age, character, propensity
to commit other crimes, chances of reform, and past convictions, as well as the
goal of rehabilitation. In State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995)
we ruled, while sentencing courts have a duty to consider all circumstances in a
particular case, it is not necessary to “specifically acknowledge each claim of
mitigation urged by the defendant.” Additionally, in addressing the PSI during
Hopkins’s resentencing, the district court in fact did consider Hopkins’s age and
character, her prior record of convictions, her employment status, and family
circumstances—all analyzed in the context of the societal goal of protecting the
community from further offenses.
In addressing the PSI, the court cited Hopkins’s “virtually nonexistent”
criminal history and applauded her recent good decisions despite her past
educational failings. The court further noted Hopkins had “done well in her
current structured environment”—before it finally returned to the severity and
multiplicity of the drug crimes she committed. Addressing such factors, albeit
briefly, is sufficient for us to conclude the district court did not rely solely on one
factor.
Courts must weigh pertinent matters in determining a proper sentence.
State v. Stakenburg, 215 N.W.2d 265, 267 (Iowa 1974). And inherent in that
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weighing process, the court has the discretion to vary the importance placed
upon each relevant factor as demanded by the facts of each case. See id. A
court treating one factor as more important than another factor is not an abuse of
discretion so long as the court considers multiple factors. See McKeever, 276
N.W.2d at 387. As such, the district court did not abuse its discretion in
resentencing Hopkins because the court considered multiple factors.
Hopkins equates the facts at hand to Pepper v. United States, 131 S. Ct.
1229, 1241 (2011), where the Supreme Court ruled a district court may consider
the defendant’s post-sentencing rehabilitation during resentencing and stated
such evidence may, when appropriate, support a downward variance from the
federal sentencing guidelines. Like the appellant in Pepper, Hopkins
unquestionably made positive changes in her life, as detailed above, during the
eighteen months between the initial PSI and her resentencing. See Pepper, 131
S. Ct. at 1241. But, we are not convinced the holding in Pepper supports
Hopkins’s challenge to her resentencing. Id. Notably, federal sentencing
guidelines are not directly controlling in state sentencing issues. See State v.
Harrington, 805 N.W.2d 391, 395 (Iowa 2011). Furthermore, the district court
here specifically addressed Hopkins’s educational and other achievements at the
resentencing hearing. Finally, the Supreme Court in Pepper did not require
downward sentencing adjustments for life improvements—the Court merely
allowed them to be considered in mitigation. Peppers, 131 S. Ct. at 1241. The
Court stated “such evidence may, when appropriate, support a downward
variance,” and did not use the words “must” or “shall.” Id. at 1241 (emphasis
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added). Regardless of the weight it accorded Hopkins’s improvements, the
district court was not obligated to automatically decrease her sentence because
of the improvements. As such, the court did not abuse its discretion in rendering
a sentence identical to the first sentence imposed.
B. Ineffective Assistance of Counsel
Hopkins also contends her counsel was ineffective by failing to object to
the court’s reliance upon the outdated PSI. The burden of proof in claims
asserting ineffective assistance of counsel falls upon the defendant, thus
requiring Hopkins to establish the claim by a preponderance of the evidence.
See Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980). Hopkins must
overcome the presumption that counsel is competent. See Sims v. State, 295
N.W.2d 420, 423 (Iowa 1980). Hopkins must prove (1) counsel “failed to perform
an essential duty” and (2) when the claim rests upon a specific act or omission of
counsel at trial, “prejudice resulted therefrom.” See Snethen v. State, 308
N.W.2d 11, 14 (Iowa 1981).
We conclude Hopkins has failed to satisfy either of the required elements.
To prove the first prong—counsel’s failure to perform an essential duty—Hopkins
must prove counsel’s assistance was not “reasonable considering all the
circumstances.” See Strickland v. Washington, 466 U.S. 668, 688 (1984).
Hopkins contends her counsel’s failure to object to the court’s consideration of an
outdated PSI meets this standard because she had made various improvements
to her life in the eighteen months between the filing of the original PSI and the
time of resentencing. While the PSI was not updated to reflect such changes
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and while the existing PSI was used by the district court, those facts alone are
not enough for us to deem counsel’s conduct unreasonable.
The Supreme Court has been very clear about the high level of deference
afforded to counsel, stressing any challenges to counsel’s representation are to
be resolved by courts with an emphasis on understanding the challenged
conduct from counsel’s perspective and eliminating biases of reviewing-court
hindsight. Id. at 689. Put another way, “a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel's
conduct.” Id. at 690.
Here, Hopkins’s counsel brought the updated information to the court’s
attention. Not only did counsel inform the district court of Hopkins’s high school
diploma, employment, class certificates, entrance into a treatment program,
family support, professional skills, peer group changes, and lack of prior criminal
history, the court acknowledged such changes before issuing its sentence. Thus,
we reject Hopkins’s claim counsel’s conduct fell outside the range of
professionally competent assistance. Counsel likely realized there was no
certainty an updated PSI would have benefited, and not harmed, Hopkins. If, for
instance, the PSI author considered the new information and offered the same
sentencing recommendation, the impact of the updated information would be
lessened. By presenting the information directly to the court, counsel exercised
appropriate discretion. While counsel could have chosen to approach the matter
differently, choosing to inform the court of the updated information at the
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resentencing hearing rather than seeking an updated PSI was an exercise of
reasonable professional judgment.
Second, even if we assume Hopkins’s counsel breached an essential
duty, the record does not show prejudice resulted. To establish prejudice,
Hopkins must prove a “reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.”
See Strickland, 466 U.S. at 694. The question here is whether a reasonable
likelihood existed that had counsel objected to use of the outdated PSI, the court
would have delayed resentencing, ordered an updated PSI, and that subsequent
reliance on an updated PSI would have resulted in a more lenient sentence. We
conclude Hopkins has not shown the reasonable likelihood of such a result.
The district court specifically addressed various factors Hopkins contends
her counsel failed to ensure were included in an updated PSI. Most notably, the
court stated Hopkins “apparently is making good decisions in her structured
environment at this point in time, which I applaud.” Similarly, the court stated
“even though she’s done well in her current structured environment, these are
very serious offenses, the nature of the offenses themselves and the multiplicity
of them.” Both comments show the court considered Hopkins’s life
improvements as relevant factors in deciding her new sentence and, despite not
reading the factors in a current PSI, was fully aware of them. More specifically,
the court addressed Hopkins’s “previous educational situation,” also suggesting it
was privy to the fact it had subsequently changed.
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We see no reason to believe the outcome would have been different if the
information had been offered in an updated PSI when the information was
nevertheless known to the court before resentencing. Speculative conclusions
are not enough to find prejudice resulting from counsel’s failure to perform an
essential duty—there must be “reasonable probability.” Id. Hopkins herself
contends “a less restrictive sentence would have been entirely possible” if the
court had considered an updated PSI. But, mere possibility of a result is not
enough. Hopkins is unable to satisfy the prejudice prong.
The Sixth and Fourteenth Amendments—from which claims regarding the
effectiveness of counsel arise—grant individuals not only the right to counsel, but
also the right to the effective assistance of counsel. Id. at 684–86. Such
effective assistance ensures a fair, adversarial trial in which evidence is
presented to an impartial tribunal. Id. at 685. In this case, the relevant
information was presented to the district court and the court considered it before
resentencing. Because the district court imposed its sentence after its
consideration of numerous relevant factors—many of which were at issue in
Hopkins’s complaint—counsel did not render ineffective assistance by failing to
object to the court’s reliance on an outdated PSI. As such, we affirm.
AFFIRMED.