IN THE COURT OF APPEALS OF IOWA
No. 14-0797
Filed April 6, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ASCENCION ANIBAL VARGAS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Defendant appeals his conviction for possession of a simulated controlled
substance with intent to deliver. CONVICTIONS AFFIRMED, SENTENCE
VACATED, AND CASE REMANDED FOR RESENTENCING.
Joseph C. Glazebrook of Glazebrook, Moe, & Hurd, L.L.P., Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau and Tyler J.
Buller, Assistant Attorneys General, for appellee.
Heard by Tabor, P.J., and Bower and McDonald, JJ.
2
BOWER, Judge.
Defendant Ascencion Vargas appeals his conviction for possession of a
simulated controlled substance with intent to deliver. We find the parties and the
district court improperly believed a prison sentence was mandatory, as probation
was not considered. We also find Vargas did not receive ineffective assistance
due to defense counsel’s failure to claim Iowa Code section 901.10 (2013)
unconstitutionally punishes those who exercise their right to a jury trial. We
affirm Vargas’s conviction, vacate his sentence, and remand for resentencing.
I. Background Facts & Proceedings
Vargas was charged with possession of more than five grams of a
simulated controlled substance with intent to deliver, in violation of section
124.401(1)(b)(7) (2013), a class B felony, and failure to affix a drug tax stamp, in
violation of sections 453B.3 and 453B.12, a class “D” felony. The State alleged
the substance was simulated methamphetamine. After a jury trial, Vargas was
found guilty of the offenses charged.
At the sentencing hearing, the prosecutor stated, “[B]eing convicted of a
Class B methamphetamine—or simulated methamphetamine case, prison is
mandatory in this case.” Defense counsel agreed, stating, “I would concur with
the same recommendations made by the State. [The prosecutor] is correct that
on Count I it does require a prison sentence with a mandatory minimum of one-
third of that sentence.”
The district court stated it looked at various factors, including prior
convictions and the fact the present offense occurred while Vargas was on
probation for a previous offense. The court stated:
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But the legislature, in its wisdom, has created a crime set for the
sale or the possession of intent to sell a simulated drug, which
carries the same penalties as that for an actual controlled
substance. The legislature sets the law in the state, and it’s the job
of the Court to enforce the laws as it’s written by the legislature.
The jury, having found you guilty of that crime, it is my
responsibility as a judge to impose judgment consistent with the
laws set forth by the legislature in the findings of the jury, and that’s
what I will be doing in this case.
The court sentenced Vargas to a term of imprisonment not to exceed twenty-five
years on the charge of possession with intent to deliver and five years on the
charge of failure to affix a drug tax stamp, to be served concurrently. The court
did not mention a suspended sentence or probation.
On the sentencing order1 the court checked a box next to the statement:
PROBATION IS DENIED because it is unwarranted. Defendant is
committed to the custody of the Director of the Iowa Department of
Correctional Services (DCS) for a determination of the appropriate
place of confinement, all as provided by Iowa Code Sections 901.7
and 902.5. Granting probation is denied because probation would
not provide maximum opportunity for rehabilitation of defendant and
protection of the public from further offenses.
Vargas appeals his conviction of possession of more than five grams of a
simulated controlled substance with intent to deliver.
II. Mandatory Prison Sentence
Vargas claims he should be resentenced because the court incorrectly
believed it did not have discretion to suspend his sentence and place him on
probation. Under section 901.3(3)(e), the court may not suspend a sentence for
a violation of section 124.401(1)(a) or (b) “and the controlled substance is
methamphetamine.” Vargas claims this section should not apply to him because
1
The caption on the form is “Plea/Sentencing Order—Felony Drug,” and incorrectly
states Vargas had pled guilty.
4
he was not convicted of possession of methamphetamine with intent to deliver
but was convicted of possession of simulated methamphetamine with intent to
deliver. He claims the court could have suspended his sentence and placed him
on probation. He asks his sentence be vacated and remanded for resentencing.
“We review sentencing decisions for an abuse of discretion or defect in the
sentencing procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).
“An abuse of discretion will only be found when a court acts on grounds clearly
untenable or to an extent clearly unreasonable.” Id. “When a court has
discretion in sentencing, ‘it must exercise that discretion.’” State v. Johnson, 630
N.W.2d 583, 590 (Iowa 2001) (citation omitted). If a court fails to exercise its
discretion, based on an incorrect belief it does not have discretion, the sentence
must be vacated and the case remanded for resentencing. See id.
Under section 124.401(1), a person may not possess with the intent to
deliver a controlled substance, “a counterfeit substance, or a simulated controlled
substance.” A violation of section 124.401(1)(b) includes the possession of more
than five grams but not more than five kilograms of methamphetamine,
counterfeit methamphetamine, or simulated methamphetamine. See State v.
Meyer, 705 N.W.2d 676, 678 (Iowa Ct. App. 2005) (noting chapter 124 “prohibits
delivery, manufacture, or possession of simulated and counterfeit controlled
substances”).
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In general, a court may suspend a sentence and place a defendant on
probation upon such terms and conditions as it may require.2 Iowa Code
§ 907.3(3); State v. Thomas, 659 N.W.2d 217, 221 (Iowa 2003). The statute lists
several exceptions where the court may not suspend a defendant’s sentence,
including when, “The offense is a violation of section 124.401, subsection 1,
paragraph ‘a’ or ‘b’, and the controlled substance is methamphetamine.” Iowa
Code § 907.3(3)(e); State v. Biddle, 652 N.W.2d 191, 200 (Iowa 2002).
On appeal, the State does not argue section 907.3(3)(e) prohibits the
court from granting a suspended sentence when a person has violated section
124.401(1)(a) or (b) by possession of a simulated controlled substance with
intent to deliver. Instead, the State claims the court exercised its discretion and
denied a suspended sentence. The State claims this is shown by the check in
the box next to the paragraph denying probation on the sentencing form.
Upon our review of the record from the sentencing hearing, we determine
the district court left the impression it mistakenly believed the sentence was
mandatory. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa 2010) (noting
resentencing may be necessary where the court “left the impression that the trial
court may have mistakenly believed that consecutive sentences were mandatory”
(quoting State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989))). The court stated
the offense of possession of a simulated controlled substance “carries the same
penalties as that for an actual controlled substance.” Under section 907.3(3)(e),
2
The statute does not apply to defendants convicted of forcible felonies or a violation of
chapter 709 committed by person who is a mandatory reporter of child abuse and the
victim is under the age of eighteen. Iowa Code § 907.3.
6
however, a violation of section 124.401(1)(a) or (b) involving methamphetamine
is treated differently than a violation involving a simulated controlled substance.
Also, the prosecutor and defense counsel incorrectly told the court a
prison sentence was mandatory in this case. Thus, no arguments were
presented to the court on the issue of whether or not a suspended sentence
would be appropriate for Vargas. We conclude the check on a box in the
sentencing order does not cure the problems arising from the misinterpretation of
section 907.3(3)(e) and the lack of arguments presented at sentencing.
We conclude Vargas’s sentence for possession of more than five grams of
a simulated controlled substance with intent to deliver must be vacated and the
case remanded for resentencing.
III. Ineffective Assistance
Vargas claims he received ineffective assistance because defense
counsel did not argue at the time of sentencing section 901.10 unconstitutionally
punishes defendants who exercise their right to a jury trial. Section 901.10(2)
provides:
[I]f the sentence under section 124.413 involves an amphetamine
or methamphetamine offense under section 124.401, subsection 1,
paragraph “a” or “b”, the court shall not grant any reduction of
sentence unless the defendant pleads guilty. If the defendant
pleads guilty, the court may, at its discretion, reduce the mandatory
minimum sentence by up to one-third. If the defendant additionally
cooperates in the prosecution of other persons involved in the sale
or use of controlled substances, and if the prosecutor requested an
additional reduction in the defendant’s sentence because of such
cooperation, the court may grant a further reduction in the
defendant’s mandatory minimum sentence, up to one-half of the
remaining mandatory minimum sentence.
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Vargas claims this statute unconstitutionally rewards defendants who choose to
plead guilty and punishes those who choose to exercise their right to trial.
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, an applicant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice resulted to the extent it denied the applicant
a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
In Biddle, the Iowa Supreme Court determined section 901.10 did not
violate a defendant’s right against self-incrimination under the Fifth Amendment,
the right to a jury trial as guaranteed by the Sixth Amendment, or the defendant’s
corresponding rights under the Iowa Constitution. 652 N.W.2d at 200–02. The
court noted, “[N]ot every burden on the exercise of a constitutional right, and not
every pressure or encouragement to waive such a right, is invalid. Specifically,
there is no per se rule against encouraging guilty pleas.” Id. at 202 (alteration in
original) (quoting Corbett v. New Jersey, 439 U.S. 212, 218–19 (1978) (footnote
omitted)); cf. United States v. Jackson, 390 U.S. 570, 583 (1968) (noting a
problem with a statute instituting the death penalty only in cases where a
defendant was tried by a jury was “not that it necessarily coerces guilty pleas and
jury waivers but simply that it needlessly encourages them”). “[S]ection
901.10(2) gives the sentencing court discretion to reduce the mandatory
minimum sentence of those pleading guilty. A defendant therefore could receive
the mandatory minimum sentence whether or not he or she pleads guilty.”
Biddle, 652 N.W.2d at 202. Thus, the statute did not violate the defendant’s Fifth
or Sixth Amendment rights or his rights under the Iowa Constitution. Id.
8
The Iowa Supreme Court also considered whether section 901.10(2)
violated the defendant’s rights under the equal protection clauses of the United
States and Iowa Constitutions. Id. The court concluded there was no violation of
the defendant’s equal protection rights, as the statute was “rationally related to
the government’s interest in curbing the increasing and widespread use of
methamphetamine, a highly addictive drug.” Id. at 203.
Vargas claims Biddle should be overruled, stating the court did not engage
in an independent analysis under the Iowa Constitution. We are not at liberty to
overrule controlling supreme court precedent. See State v. Beck, 854 N.W.2d
56, 64 (Iowa Ct. App. 2014). We conclude Vargas has not shown he received
ineffective assistance due to defense counsel’s failure to raise an argument
seeking to overrule the case; if such an argument had been raised it would have
been rejected. See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015)
(finding defense counsel has no duty to pursue a course of action which would
have been meritless).
We affirm Vargas’s convictions, vacate his sentence, and remand for
resentencing.
CONVICTIONS AFFIRMED, SENTENCE VACATED, AND CASE
REMANDED FOR RESENTENCING.