IN THE COURT OF APPEALS OF IOWA
No. 14-2042
Filed July 9, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHANSEY JORDALE LEWIS,
Defendant-Appellant.
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Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
Chansey Lewis appeals the judgment and sentence entered following his
guilty plea to delivery of a controlled substance. AFFIRMED AS MODIFIED
AND REMANDED.
Marti D. Nerenstone, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, Matthew Wilbur, County Attorney, and Amy Zacharias, Assistant County
Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
Chansey Lewis appeals the judgment and sentence entered following his
guilty plea to delivery of a controlled substance (cocaine), challenging the district
court’s failure to order a presentence investigation (PSI) report prior to imposition
of sentence. Lewis also claims his trial counsel was ineffective in allowing him to
waive the use of a PSI report at sentencing and in failing to present evidence in
support of his sentencing request. We affirm the judgment imposing sentence,
but modify and remand so that the report may be procured.
Lewis pled guilty to possession of a controlled substance with intent to
deliver, a class “C” felony, in violation of Iowa Code sections 124.401(1)(c)(2)(b)
and 124.413 (2013). At his plea and sentencing hearing Lewis waived
preparation of his PSI report. His attorney requested the district court sentence
Lewis to a residential correctional facility. The district court then sentenced
Lewis to a term of imprisonment not to exceed ten years, subject to a one-third
mandatory minimum. See Iowa Code §§ 124.413, 902.9(1)(d).
Iowa Code section 901.2 provides that upon plea or verdict of guilty, the
“court shall order a presentence investigation when the offense is a class ‘B,’
class ‘C,’ or class ‘D’ felony.” Id. § 901.2(2)(b). Although a defendant may waive
the sentencing court’s use of a PSI report, the preparation of a PSI for these
offenses “shall not be waived.” Id.; see State v. Thompson, 494 N.W.2d 239,
241 (Iowa 1992) (“[T]here is a distinction between waiving the PSI, prohibited
under section 901.2, and waiving the trial court’s use of the report.”).
Here, Lewis contends—and the State concedes—it was error for the court
to waive preparation of a PSI report. To remedy this error, we affirm as modified
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the judgment of the district court and remand for entry of an order in compliance
with this opinion. See State v. Brown, 518 N.W.2d 351, 352 (Iowa 1994) (setting
forth remedy for trial court’s failure to order a PSI report).
Lewis also claims his trial counsel was ineffective in allowing him to waive
the use of a PSI report at sentencing and in failing to present evidence in support
of his sentencing request. To succeed on such a claim, Lewis must prove both
that (1) his counsel failed to perform an essential duty and (2) he suffered
prejudice as a result of his counsel’s failure. See Dempsey v. State, 860 N.W.2d
860, 868 (Iowa 2015).
At the plea and sentencing hearing, the district court informed Lewis
“sentencing [is] open, it’s not a pre-established agreed upon sentence,” and a
PSI report “would give me a background study of your personal and your criminal
history and they would make some sentencing recommendations.” Lewis
expressly stated his decision to “waive” the PSI report. The court then told Lewis
“if you need any additional time to speak to [trial counsel] about any of this now,
you let me know.” Lewis confirmed his desire to proceed to immediate
sentencing. Lewis stated, “I’d like to get back to my family, my four kids. Also
like to get some treatment. . . . I’ve got a place—a place for all my kids. . . . I
have a job out there waiting for me so I’m ready to get back and do better.” Trial
counsel then stated:
[My client] does have a prior manufacturing marijuana. He
was sentenced to 180 days between when he was in before and
now he’s done that and it’s off the table.
With that, bringing that other charge up, he did get probation.
He’s never had a chance to attend the RCF [residential correctional
facility]. What he’s spoken about—to me about is he’s requesting
the RCF for maximum benefits so he can get his stuff straightened
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out. And if you want to talk more about it, he has substance abuse
issues and that need to be taken care of and we believe that that
would be best to happen at the RCF and not prison.
Upon our de novo review, see id. (setting forth standard of review of
ineffective-assistance-of-counsel claims), we conclude Lewis was aware at the
time of sentencing of the purpose of a PSI report, the role it could play in his
sentencing, and that the PSI report may contain favorable information that could
have resulted in a lesser sentence. Lewis knowingly and voluntarily waived the
report and chose immediate sentencing. Under these circumstances, trial
counsel was not ineffective in allowing Lewis to waive the use of a PSI report at
sentencing. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (noting trial
counsel has no duty to raise an issue that has no merit); State v. Polly, 657
N.W.2d 462, 465 (Iowa 2003) (noting failure to prove either element by a
preponderance of the evidence is fatal to a claim of ineffective assistance of
counsel). We further observe trial counsel—as well as Lewis—spoke to the court
in support of Lewis’s sentencing request. The district court imposed a sentence
within the statutory parameters and articulated its reasons for imposing the
sentence based on the record before it.1 Under these circumstances, Lewis has
not shown a reasonable probability that but for his counsel’s alleged deficiencies
the result of the proceeding would have been different. See State v. Braggs, 784
1
The court stated:
The reason for the sentence, Mr. Lewis, is your prior criminal
history. If you had benefited from the probation that had been established
before, you wouldn’t have committed a new offense. I understand your
concerns about your children and your family, but if those were first in
your mind, you wouldn’t have been selling cocaine. So that’s the reason
for the sentence.
I’ll take you at your word, though, that you intend to turn your life
around. There is substance abuse treatment available for you in the
penitentiary system and you should avail yourself of that.
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N.W.2d 31, 34 (Iowa 2010) (setting forth standard to establish prejudice); Polly,
657 N.W.2d at 465.
The judgment of the trial court is modified and affirmed. The case is
remanded for entry of an order in compliance with this opinion.
AFFIRMED AS MODIFIED AND REMANDED.