IN THE COURT OF APPEALS OF IOWA
No. 15-1553
Filed January 11, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LAMONT MONTEE WILLIAMS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Timothy J. Finn,
Judge.
The defendant appeals his convictions, alleging ineffective assistance of
counsel, and his sentences, alleging the district court abused its discretion.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.
Lamont Williams appeals his convictions and sentences for second-
degree burglary, simple assault, assault causing bodily injury, and child
endangerment. He alleges his trial counsel was constitutionally ineffective for
failing to object to testimony and other evidence derived from his cell phone
records. Additionally, he contends the trial court abused its discretion by
ordering the maximum fines on each charge and imposing consecutive prison
sentences. After careful review, we affirm.
I. Background Facts and Proceedings.
Williams and the complaining witness had a two-year romantic
relationship, which resulted in a child. All three resided in the complaining
witness’s home. However, just prior to the incident, Williams and the
complaining witness broke up. Williams moved out of the home but left some of
his personal effects at her home. The complaining witness eventually took
Williams some of his belongings; however, several of his items remained at the
home, including some legal documents, his identification, his electronic benefits
transfer card, and various photos.
Although no longer romantically involved, Williams and the complaining
witness kept in communication with each other via text messages and phone
calls. The complaining witness indicated she no longer wished to pursue a
romantic relationship with Williams despite his repeated sexual advances.
Williams contends the two continued a sexual relationship.
Between March and April 2015, Williams and the complaining witness
exchanged text messages, described as “just arguing back and forth.” The
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arguing apparently peaked on April 13 when the complaining witness told
Williams she did not want him anywhere near their child.
That evening, the complaining witness and a friend stayed at the
complaining witness’s residence, where they smoked marijuana “to relax.” Once
the friend left, the complaining witness said she took two anti-anxiety and one
antidepressant pills before going to sleep. The complaining witness testified she
awakened sometime between 11:30 p.m. and 1:00 a.m. when Williams put his
penis into her mouth. She further stated he proceeded to have sex with her
without her consent while the child was present in the room; Williams denied the
two had sex. Following this, the complaining witness testified Williams asked her
for a ride back to Ames, to which she agreed because she wanted him out of her
home.
The complaining witness testified that although Williams still had personal
belongings in her home, he was not welcome to enter without her permission.
Williams testified he went to her home in order to retrieve his belongings. He
knew the front door did not lock properly and that he could open it.
On the way to Ames with the child in the backseat of her car, the
complaining witness and Williams began arguing. The complaining witness
contended the argument began when Williams inquired into whether she was
seeing other men and bringing them around the child, to which she admitted she
was. According to her, Williams became enraged and struck her three or four
times in the face with a backhanded, closed fist. She testified she then slammed
on the vehicle’s brakes in the middle of Highway 30. Williams testified, however,
she stopped the vehicle because she dropped a marijuana cigarette when she
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became angry Williams was sending text messages to his new girlfriend.
Thereafter, the complaining witness exited the vehicle and attempted to call 911;
however, she testified Williams stopped her from doing so.
After some time, the complaining witness reentered the vehicle and
resumed driving Williams to Ames. At that point, a male friend of the complaining
witness called her phone, which upset Williams. Williams then hit her in the face
two or three more times. Again, she tried calling 911, but Williams apparently
took her phone from her. At this point, the complaining witness testified she
again stopped the vehicle to attempt to call 911 for a third time. She then
testified she hung up the phone because Williams told her he hid marijuana in
her car. Williams denied hitting the complaining witness or stating that he hid
drugs in her car but said she hung up the phone because her car smelled of
marijuana.
The Iowa Department of Transportation had video from traffic cameras
showing a vehicle stopped in the middle of Highway 30 at approximately 1:12
a.m. Also, Ames police did receive a “hang up” call from the complaining
witness’s phone at 1:25 a.m. but had no record of any other calls from the
complaining witness’s phone.
After dropping Williams off, the complaining witness testified she drove to
Des Moines to see her friend. She later admitted to having sex with the friend.
Later on April 14, the complaining witness went to a hospital for
examination. Hospital staff indicated she suffered a mild concussion and multiple
bruises to her face. A sexual-assault exam was also conducted, and Williams’s
DNA was not found. The only DNA found was that of the friend she visited in
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Des Moines. A treating nurse practitioner testified the complaining witness’s
injuries were consistent with the account of events she gave.
The State charged Williams by trial information on April 27, 2015.
Williams pled not guilty and demanded a speedy trial.
On July 10, 2015, the State filed a notice of intent to introduce cell phone
records from Verizon Wireless (Verizon). During a pretrial hearing, following the
denial of his motion to suppress, Williams stipulated to the records’ chain of
custody and foundational requirements.
The case went to trial on July 21, 2015. During its case, the State
presented testimony from Iowa Division of Criminal Investigations Special Agent
Holly Witt and Nevada Police Department Officer Ray Reynolds, who obtained
Williams’s cell phone records from Verizon. Both Witt and Reynolds used the
cell phone records as a basis for their testimony, and although the records were
marked as an exhibit at trial, they were not introduced into evidence.
Officer Reynolds obtained the records with a search warrant, and he noted
the resulting records received from Verizon contained “hundreds of pages of cell
phone records.” Officer Reynolds indicated the records were sent to Special
Agent Witt to analyze and summarize.
Special Agent Witt testified she examined the cell phone records to
determine Williams’s cell phone location at certain times during the evening of
the incident. She explained the records contained round-trip delay time,
evolution data optimized for internet, small message service for text messages,
and phone call details. She explained the records had been certified as true and
accurate from Verizon and that she initially thought the times listed in the records
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were in Central Standard Time unless otherwise indicated. However, Witt
apparently called and spoke with an employee from Verizon who verified the
times were in Mountain Time.
The State then introduced a summary of the information Witt examined
from the cell phone records, to which Williams did not object. Witt testified how
Williams’s phone was located in certain relevant areas, namely his house, the
complaining witness’s house, and his new girlfriend’s house, all at times that
corroborated the complaining witness’s account of the evening.
The jury found Williams guilty of second-degree burglary, in violation of
Iowa Code sections 713.1, 713.5 (2015); two counts of simple assault, in
violation of Iowa Code sections 708.1, 708.2(6); assault causing bodily injury, in
violation of Iowa Code sections 708.1, 708.2(2); and child endangerment, in
violation of Iowa Code section 726.6(1)(a), 726.6(3), 726.6(7).
Williams filed a motion for new trial and motion in arrest of judgment on
August 28, 2015; however, the court denied both. On September 2, the court
sentenced Williams to ten years’ imprisonment and a $10,000 fine for the
second-degree burglary count, thirty days’ imprisonment with credit for time
served and a $100 fine for each simple-assault count, one year imprisonment
and an $1875 fine for the assault-causing-bodily-injury count, and two years’
imprisonment and a $6250 fine for the child endangerment count. The court
ordered all sentences to run consecutively.
Williams appeals. We treat his case as a direct appeal as of right except
for the two simple misdemeanor assault convictions. There is no right of appeal
from a conviction for a simple misdemeanor; any appeal must be by way of
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discretionary review. See Iowa Code § 814.6. Williams did not seek
discretionary review from his convictions for assault. The Iowa Rules of
Appellate Procedure provide that if an appeal is before the court and the wrong
form of review was sought, “the case shall not be dismissed, but shall proceed as
though the proper form of review had been requested.” Iowa R. App. P. 6.108.
We treat this appeal as including a delayed request for discretionary review of his
assault convictions.
II. Discussion.
A. Ineffective Assistance.
Williams maintains his counsel failed to object to the admission of certain
testimony and other evidence derived from cell phone records. Specifically, he
argues the testimony from Special Agent Witt and Officer Reynolds concerning
the time zones of the phone information amounted to hearsay, the statement a
Verizon employee made to Witt about the time zones denied his right to
confrontation, and the testimony from Witt and Reynolds was irrelevant and
prejudicial because of alleged inaccuracies. Because he asserts these claims
under an ineffective-assistance framework, we review de novo. See State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006).
To prevail on a claim of ineffective assistance of counsel, Williams must
prove by a preponderance of the evidence (1) his attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We “look to the cumulative effect
of counsel’s errors to determine whether the defendant satisfied the prejudice
prong.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012). Williams’s claim will
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fail if either element is lacking. See State v. Ambrose, 861 N.W.2d 550, 556
(Iowa 2015). Williams must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id.
We ordinarily do not consider ineffective-assistance claims on direct
appeal. See State v. Taylor, 310 N.W.2d 174, 179 (Iowa 1981). While “[w]e
prefer to reserve such questions for postconviction proceedings so the
defendant’s trial counsel can defend against the charge . . . we depart from this
preference in cases where the record is adequate to evaluate the appellant’s
claim.” Id. (citation omitted).
Williams’s claims are based upon the testimony and other evidence
derived from cell-phone-record documents not introduced into evidence during
trial. The State argues claims such as these involving documents not in
evidence are best preserved for possible future postconviction relief proceedings,
and we agree. See State v. Decamp, 622 N.W.2d 290, 296 (Iowa 2001) (holding
“[i]neffective assistance of counsel claims presented on direct appeal are
typically preserved for postconviction relief proceedings to all for a full
development of the facts surrounding the conduct of counsel”). Therefore, we
preserve Williams’s ineffective-assistance-of-counsel claims for possible future
postconviction-relief proceedings.
B. Sentencing.
Next, Williams argues the court abused its discretion by sentencing him to
serve consecutive maximum prison sentences and imposing maximum fines. He
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does not, however, argue the court abused its discretion in sentencing him to
prison, nor does he contend the court failed to give adequate reasons. He urges
us to vacate his sentence and remand for resentencing.
When reviewing a district court’s sentencing decisions, we will not reverse
absent either an abuse of discretion or a defect in the sentencing procedure such
as the consideration of inappropriate matters. See State v. Formaro, 638 N.W.2d
720, 724 (Iowa 2002). “[T]he decision of the district court to impose a particular
sentence within the statutory limits is cloaked with a strong presumption in its
favor,” and the choice of one sentencing option over another does not
necessarily constitute error. Id. at 724-25.
“In applying discretion, the court ‘should weigh and consider all pertinent
matters in determining proper sentence, including the nature of the offense, the
attending circumstances, defendant’s age, character and propensities and
chances for his reform. . . . The punishment should fit both the crime and the
individual.’” State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (citations
omitted).
Here, the district court imposed the following sentences: ten years’
imprisonment and a $10,000 fine for second-degree burglary; thirty days’
imprisonment with credit for time served and $100 fine for each simple assault
count; one year imprisonment and an $1875 fine for assault causing bodily injury;
and two years’ imprisonment and a $6250 fine for child endangerment. The
court further ordered the sentences run consecutively. While Williams claims the
maximum sentences are excessive, each is within the range of punishment
allowed and each is supported by adequate reasons.
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As to the fines, we find the court did not abuse its discretion. While it is
true the fines are the maximum allowed under the Iowa Code, 1 they are within
the allowable range. Williams argues the fines are excessive—a total of $18,325
in fines when he currently owed approximately $20,000 in past due child support
and had a continuing duty to pay child support. He argues the fines are so
sizable it effectively guarantees he will never be able to pay them, and in
ordering them, the court abused its discretion. However, the district court had
many grounds to consider when it imposed sentence. The court explained:
Mr. Williams, whenever the court imposes a sentence, it’s
required to consider a number of factors. Included in that are the
nature of the offense, any previous criminal record that the
defendant may have, any mitigating factors which may exist.
But basically it boils down to two things. One is a sentence
that will provide the best chance for rehabilitation for you as a
person who has violated the law; and secondly, a sentence that will
provide for the protection of the community.
When I review your presentence investigation and consider
the evidence presented here, a couple things jump out at me.
One is the fairly lengthy criminal record that’s ongoing over a
number of years. It appears to me that you have been given
numerous opportunities to rehabilitate yourself and those have
been unsuccessful.
Next, I note the nature of the offense here. I note that both
in the presentence investigation as well as your statements here
today, you refer to this as a mistake. You do not accept
responsibility for your actions. And you blame the jury for finding
you guilty of something you claim to not have done.
In my opinion and based on what the jury said, I think the
evidence was overwhelming that you committed a criminal offense
1
Second-degree burglary is a class C felony, punishable by no more than ten years’
imprisonment and a fine of at least $1000 not to exceed $10,000. See Iowa Code
§§ 713.1, 713.5, 902.9(d). Simple assault is a simple misdemeanor, punishable by no
more than 30 days’ imprisonment and a fine of at least $65 not to exceed $625. See
Iowa Code §§ 708.1, 708.2(6), 903.1(a). Assault causing bodily injury is a serious
misdemeanor, punishable by no more than one year imprisonment and a fine of at least
$315 not to exceed $1875. See Iowa Code §§ 708.1, 708.2(2), 903.1(b). Child
endangerment is an aggravated misdemeanor, punishable by no more than two years’
imprisonment and a fine of at least $625 but not to exceed $6250. See Iowa Code
§§ 726.6(7), 903.1(2).
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and it was not a mistake to go into this house after dark in the
middle of the night where you had no permission to be there and
assault your former girlfriend.
So the fact that you’re accepting no responsibility for your
actions is a factor which the court will consider here.
....
Whenever—when I think about this, and I heard you say it
that you have got all of these children that you need to take care of.
Well, I don’t—it didn’t appear to me that you’re doing a very good
job of taking care of them.
On our review, we note the district court properly considered various factors and
options when imposing punishment on Williams. Nothing in the punishment
exceeds statutory limitations, and we find the court did not abuse its discretion.
III. Conclusion.
The record before us is insufficient to address Williams’s ineffective-
assistance claims, and as such, we preserve those for possible future
postconviction-relief proceedings. We also find the district court’s imposition of
maximum fines and consecutive sentences was not an abuse of its discretion.
Therefore, we affirm.
AFFIRMED.