IN THE COURT OF APPEALS OF IOWA
No. 16-0209
Filed June 7, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MITCHELL SCOTT GAHAGAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson
(guilty plea) and Nancy S. Tabor (sentencing), Judges.
Defendant appeals from his convictions and sentences, following a guilty
plea, for one count of possession with intent to deliver (marijuana), one count of
unlawful possession of a prescription drug (oxycodone), and one count of
unlawful possession of a prescription drug (baclofen). CONVICTIONS
AFFIRMED; SENTENCES REVERSED AND REMANDED.
Leah D. Patton of Puryear Law P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ. Tabor, J.,
takes no part.
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POTTERFIELD, Judge.
Mitchell Gahagan appeals from his convictions and sentences following a
guilty plea, for one count of possession with intent to deliver (marijuana), one
count of unlawful possession of a prescription drug (oxycodone), and one count
of unlawful possession of a prescription drug (baclofen). Gahagan claims trial
counsel was ineffective for (1) allowing him to plead guilty to possession with
intent to deliver (marijuana) without a factual basis to support the charge and (2)
failing to ensure he was advised of the law enforcement initiative (LEI) surcharge
and the 35% surcharge involved with his two convictions for unlawful possession
of a prescription drug. Additionally, he maintains the district court abused its
discretion when sentencing him, claiming the court (1) considered an improper
sentencing factor, namely, pending charges; and (2) wrongly refused to allow a
defense witness to make a statement at the hearing.
I. Background Facts and Proceedings.
Gahagan was originally charged by trial information with five crimes in
case FECR370741. He entered into a plea agreement with the State, whereby
he would plead guilty to one count of possession with intent to deliver
(marijuana), one count of unlawful possession of a prescription drug
(oxycodone), and one count of unlawful possession of a prescription drug
(baclofen), and the State would dismiss the other two charges.
On December 7, 2015, the State filed a “memorandum of plea
agreement.” Both Gahagan and his attorney signed the document, which
provided, in part, “Defendant understands that a $125.00 law enforcement
initiative surcharge will be assessed for any adjudication of guilty or a deferred
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judgment on a violation under the following Chapters: 124, 155A, 453B, 713,
714, 715A, 716, 719 (719.8), and 725 [725(1), (2), or (3)].” (Alteration in original).
The same day, Gahagan executed written guilty pleas for both charges of
unlawful possession of a prescription drug. Each form contained the following
statement, “I, Mitchell Gahagan, state to the Court that I am charged with
unlawful possession RX drugs, code section 155A.21 [and] 703.1, a serious
misdemeanor.”
The same day, Gahagan appeared before the court and entered a guilty
plea to the charge of possession with intent to deliver (marijuana). The following
exchange took place between defense counsel and Gahagan:
Q. Thank you. Mr Gahagan, on June 12, 2015, did you
possess marijuana? A. Yes.
Q. And did you know that the substance was marijuana? A.
Yes.
Q. And did you possess that marijuana with intent to share
with other people? A. Yes.
Q. And did that happen in Scott County, Iowa? A. Yes.
After the court accepted Gahagan’s plea, it scheduled sentencing for January 28,
2016. Gahagan had recently been convicted of failure to affix a drug tax stamp
in another Scott County case (FECR358471),1 and the court scheduled
sentencing for both convictions to occur at the same time.
At the sentencing hearing, the State recommended the court sentence
Gahagan to a term of incarceration not to exceed five years for his failure-to-affix
conviction in FECR358471 and a total term of incarceration not to exceed five
years for the three convictions in the present case. The State asked the court to
1
Gahagan’s appeal involving case FECR358471 is also being filed today. See State v.
Gahagan, No. 16-0206, 2017 WL ______, at *1 (Iowa Ct. App. June 7, 2017).
4
order the sentences for the two separate cases to be served consecutively.
Defense counsel asked the court to grant Gahagan probation. She also asked
that Gahagan’s girlfriend, mother, and father be allowed to testify on his behalf;
she indicated they would speak about how good of a father Gahagan was to his
young daughter, his history with addiction to marijuana, and his mental health
struggles. The court responded, “The presentence investigation report includes
history about his mental health that you did not correct, and it includes what the
issues are and his diagnosis, so I have that information before me to consider.”
The court asked the prosecutor if she had any objection to the family members
speaking, and the prosecutor indicated she would “leave that up to the Court.”
THE COURT: Well, my concern is that the State has a right
to know what they’re gonna say and to rebut it, and they don’t have
that information available. They are not victims. Only victims are
allowed by statute to speak.
DEFENSE COUNSEL: I think [Gahagan’s mother] wrote a
letter. I’d be happy to show it to Ms. Cunningham. I’ve not read it.
THE COURT: Well, if it doesn’t contain any different
information than is contained in the PSI, it would [not] be helpful.
Ma’am, if you can’t keep yourself from talking and make comments
and making gestures to me, then I’m gonna ask you to leave the
courtroom, please. I cannot consider what you say statutorily
unless the county attorney agrees to it. Do you understand that?
AUDIENCE MEMBER: I understand.
THE COURT: I understand that you’re a family member and
this is difficult on you, and I take no fault and I show no fault toward
any of the family members. This is not your fault. It’s his
responsibility to provide all the information that’s necessary to the
probation officer and if he has not done that, that’s on him, not on
you, and I can’t consider—you can talk, but I cannot consider
anything you say because it’s not statutorily allowed, so if you
would like to talk—
The family members were not allowed to speak on Gahagan’s behalf before the
court imposed the sentences, stating in part:
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You had—it doesn’t matter that it was two years old. You
committed another crime and admitted to committing another crime
while you still had other charges pending and cases pending.
You’ve been rearrested since these. Now, they’re allegations, but
you still have been arrested, and that is not something that’s—
that’s something that’s in violation of your pretrial release.
You have a long history for someone so young, 31 years old,
long criminal history that spans many, many years and takes up at
least four and a half or five pages of the presentence investigation
reports. Because of your pending charges and because of your
past volatile behavior, you don’t qualify for any kind of residential
treatment facility in the community. You have very little work
history.
....
This is a case where I don’t believe that probation is
appropriate, and I’m going to sentence you [accordingly].
....
In FECR 358441, it is my sentence that you are sentenced
to an indeterminate term of confinement not to exceed five years,
pay a fine of $750 plus costs. Under File No. FECR 370741 you’re
sentenced under Count 1 to an indeterminate term of confinement
not to exceed five years, a fine of $750. Under Count 4, you’re
sentenced to an indeterminate term not to exceed one year in the
Scott County Jail, pay a fine of $315. Under Count 5 an
indeterminate term of confinement in the Scott County Jail for one
year and pay a fine of $315. I will allow the sentences under
370741 to be served concurrent with each other, but I do think that,
based on your history, that there is aggravating circumstances and
it should be that the sentence in the other—under—in both cases
should run consecutive to each other.
Gahagan appeals.
II. Discussion.
A. Ineffective Assistance.
Gahagan makes two claims of ineffective assistance; he maintains trial
counsel was ineffective for (1) allowing him to plead guilty to possession with
intent to deliver (marijuana) without a factual basis to support the charge and (2)
failing to ensure he was advised of the LEI surcharge involved with his two
convictions for unlawful possession of a prescription drug.
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We review claims of ineffective assistance de novo. State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006). “To establish his claim of ineffective assistance of
counsel, [Gahagan] must demonstrate (1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in prejudice.” Id. (citing Strickland v.
Washington, 466 U.S. 668, 687–88 (1984)). Gahagan’s claims fail if either
element is lacking. See Everett v State, 789 N.W.2d 151, 159 (Iowa 2010). We
consider the cumulative effect of possible errors when considering a defendant’s
claims of ineffective assistance. See State v. Clay, 824 N.W.2d 488, 500 (Iowa
2012). We resolve claims of ineffective assistance on direct appeal only when
the record is adequate to do so. See id. Here, we find the record adequate.
1. Factual Basis. Gahagan maintains trial counsel was ineffective for
allowing him to plead guilty to possession with intent to deliver (marijuana) when
there was not a factual basis to support a finding he intended to sell the
marijuana. He claims that his admission he intended to “share” the marijuana
supports a conviction for a lesser-included offense of accommodation.
In determining whether a factual basis supports Riley’s guilty pleas, we
consider the entire record, as a whole, to see if the elements of the offenses
have been satisfied. See State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010).
“A factual basis can be discerned from four sources: (1) inquiry of the defendant,
(2) inquiry of the prosecutor, (3) examination of the presentence report, and (4)
minutes of evidence.” Id. at 768. Moreover, “the record does not need to show
the totality of the evidence necessary to support a guilty conviction, . . . it need
only demonstrate facts that support the offense.” Id.
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Gahagan’s claim is without merit. A defendant is guilty of an
accommodation offense if the prosecution proves the defendant delivered or
possessed with intent to deliver one-half ounce or less of marijuana, which was
not offered for sale. See Iowa Code § 124.410. Here, the minutes of testimony
establish a bag containing approximately 20.2 grams was located in Gahagan’s
vehicle while another 2.4 grams of marijuana were located on his person. The
total amount, 22.6 grams, is more than one-half ounce. See Weights and
Measures, Merriam-Webster (May 22, 2017), https://www.merriam-
webster.com/table/collegiate/weight.htm (defining the metric equivalent of an
ounce as 28.350 grams). Additionally, the Iowa Code defines “delivery” or
“deliver” as “the actual, constructive, or attempted transfer from one person to
another of a controlled substance, whether or not there is an agency
relationship.” Iowa Code § 124.101(7). The definition does not require one to
sell or make a profit in order to have “delivered.” Gahagan’s admission that he
intended to “share” the marijuana with other people is sufficient to establish a
factual basis for possession with intent to deliver.
2. Surcharges. Gahagan claims trial counsel was ineffective for not
ensuring he was advised of the 35% surcharge and the $125 LEI surcharge for
his convictions for unlawful possession of a prescription drug. Here, the plea
agreement memo and the guilty pleas—when read in conjunction—advised
Gahagan that the LEI surcharge is assessed on violations of chapter 155A and
that his guilty pleas involved a crime found in chapter 155A. Additionally, the
guilty-plea forms indicated Gahagan was pleading guilty to
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[a] serious misdemeanor, the Court can sentence me to jail for up
to one year, and fine me between $315.00 and $1875.00, plus
surcharge and court costs. If the charge is a 1st offense
possession of marijuana, the maximum jail sentence is six months
and a fine up to $1000 plus surcharge and court costs.
The form did not indicate that the surcharge was 35% of the fine.
Iowa Rule of Criminal Procedure 2.8(2)(b)(2) requires the plea court to tell
Gahagan the “mandatory minimum punishment, if any” and the “maximum
possible punishment” before accepting his guilty plea. See State v. Fisher, 877
N.W.2d 676, 685 (Iowa 2016). A defendant pleading guilty has a right to be
informed of surcharges levied on fines. Id. at 678, 686 (“For rule 2.8 purposes,
we see no meaningful difference between a fine and a built-in surcharge on a
fine.”). We are not persuaded the general reference to surcharges amounted to
substantial compliance. The court was obligated to inform Gahagan of the
minimum fine. The plea form identified the number as $315. This was not the
minimum fine. With the 35% surcharge, the minimum fine would have been
$560.25. See id. at 685 (noting “the surcharges made it effectively impossible
that [the defendant] could ever actually be fined $315, the mandatory minimum
listed on the plea form” and “[i]n fact, the actual dollar minimum was $560.25”).
There is nothing in the direct-appeal record as to whether Gahagan’s trial
counsel had advised him of the specific surcharges before Gahagan executed
his guilty pleas. Such evidence is significant to a prejudice analysis, regardless
of our view of the potential viability of Gahagan’s underlying claim. See State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
Because we conclude the record is not adequate to resolve this claim in
the specific circumstances of this case, we affirm Gahagan’s convictions and
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preserve his claim alleging deficiencies in the plea colloquy for possible
postconviction proceedings. See, e.g., State v. Draper, No. 16-0336, 2017 WL
2181217, at *4 (Iowa Ct. App. May 17, 2017) (preserving similar challenge);
State v. Marcott, No. 16-0869, 2016 WL 7393946, at *4 (Iowa Ct. App. Dec. 21,
2016) (same).
B. Sentencing.
Gahagans maintains the district court abused its discretion when
sentencing him, claiming the court (1) considered an improper sentencing factor,
namely, pending charges; and (2) wrongly refused to allow defense witnesses to
make a statement at the hearing.
We review the sentence imposed in a criminal case for correction of errors
at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not reverse
“absent an abuse of discretion or some defect in the sentencing procedure.” Id.
Here, before imposing sentence, the court stated the following:
You had—it doesn’t matter that it was two years old. You
committed another crime and admitted to committing another crime
while you still had other charges pending and cases pending.
You’ve been rearrested since these. Now, they’re allegations, but
you still have been arrested, and that is not something that’s—
that’s something that’s in violation of your pretrial release.
“It is a well-established rule that a sentencing court may not rely upon additional,
unproven, and unprosecuted charges unless the defendant admits to the charges
or there are facts presented to show the defendant committed the offenses.” Id.
at 725. The State urges us to find the court did not rely on the pending charges
even though the court “mentioned” them. The State claims that because the
court “explicitly noted that the arrest involved only allegations,” we should not
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draw an inference of improper sentencing considerations. However, we note that
the court did not expressly disclaim the pending charges. See State v.
Mathewson, 684 N.W.2d 243, 244 (Iowa 2004) (“But we cannot ignore the error
here by assuming the sentencing court did not consider it. In the first place, the
court did not state the inadmissible evidence would not be a factor in
determination.”).
Additionally, “[w]hen a sentencing court has discretion, it must exercise
that discretion.” State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). “Failure to
exercise that discretion calls for a vacation of the sentence and a remand for
resentencing.” Id. Iowa Code section 901.2 mandates the court “shall receive
from the state, from the judicial district of department of correctional services,
and from the defendant any information which may be offered which is relevant
to the question of sentencing.” Moreover, the court “may consider information
from other sources.” Iowa Code § 901.2(1) (emphasis added). Here, the court
appeared to believe it did not have the discretion to decide whether to hear from
Gahagan’s witnesses at the sentencing hearing. The court stated, “They are not
victims. Only victims are allowed by statute to speak,” “I cannot consider what
you say statutorily unless the county attorney agrees to it. Do you understand
that?” and “I can’t consider—you can talk, but I cannot consider anything you say
because it’s not statutorily allowed.”
Based on the court’s reference to Gahagan’s pending charges and the
incorrect understanding that the court was prevented from hearing from
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Gahagan’s witnesses at sentencing, we reverse Gahagan’s sentences and
remand for resentencing.2
CONVICTIONS AFFIRMED; SENTENCES REVERSED AND
REMANDED.
2
Because we remand for resentencing, we do not address Gahagan’s claim that the
court failed to provide adequate reasons on the record for his consecutive sentences.