*1 305 Matlock, 226, State v. 304 N.W.2d 228
(Iowa 1981) (trial court should state rea- Iowa, Appellee, STATE of sons for sentence but error harmless be- authority cause court lacked to enter less sentence).
severe
Rodney
McDOWELL, Appellant.
Dale
closely
The record before us more
re
Cooper,
sembles State v.
(Iowa Ct.App.1987). There the sentencing Supreme of Iowa. Court proceedings were not transcribed and the sentencing only court’s order offered 14, Feb. 2001. following statement of “The court reasons: has reviewed the circumstances the of
fense, prior and the defendant’s back
ground.” Cooper,
The court of held vague that such generalized presumably considerations every
inform sentencing court’s basic deci Missing relating
sion. Id. was a rationale offense,
to this and this defendant’s back
ground. Id. The court remanded for re-
sentencing, convinced neither the defen system
dant nor the was well-served requiring guesswork
record so much Id.;
review. Dvorsky, see also State v. (Iowa 62, 1982) (statement re
flecting only nature offense insufficient discretion);
to reveal exercise of
Freeman, (Iowa Ct. (mere
App.1987) statement that defendant qualify probation
does for insufficient 22(3)(d)).
under rule recognize
We pressures time
facing busy judges high-volume in a court.
But defendants are not fungible commodi They informed,
ties. are entitled to be face-to-face,
preferably about the conse
quences of their criminal acts. Rule
22(3)(d) and our prior require cases as
much. The integrity system of our
justice demands it. affirm judgment
We district
court but resentencing remand for in com-
pliance with the Rules of Criminal Proce-
dure. AFFIRMED;
JUDGMENT SEN-
TENCE AND RE- VACATED CASE
MANDED FOR RESENTENCING. *2 and
dant had on two occasions sold cocaine a confidential informant cocaine base to working police. That informant for buys took testified that these controlled girlfriend, in defendant’s place the home of He also that Bertha Mae testified Scott. five- on seven occasions within a other preceding the controlled period month buys he in home when were drugs defendant was and being sold. in-
Using obtained from the information formant, obtained a war- police search executed on Bertha Mae rant that was During the search of Scott’s residence. Gallo, Appellate Del De- Linda residence, that and police discovered fender, Knipfer, and L. Shellie Assistant bags of cocaine plastic seized small crack Defender, Appellate for appellant. in and kitchen base located a closet Miller, General, Attorney Thomas J. a They police table. also found and seized Soich, Attorney Sheryl A. Assistant Gener- scanner, scale, co- an and crack electronic al, Jackson, County Attorney, Patrick C. paraphernalia. caine Prosser, County Assistant and Andrew B. residence, police entered Scott’s When for Attorney, appellee. in defendant was the northwest bedroom.
The
informant
that it
confidential
testified
was in
bedroom that
the two con-
this
CARTER, Justice.
In that
buys
trolled
had been transacted.
bedroom
found a letter
to
police
addressed
Defendant,
McDowell,
Rodney
ap-
Dale
at the
defendant and Scott
address where
from his
and
peals
conviction
sentence for
In a
being
the warrant was
executed.
possession with intent
to deliver a con-
they
in
found two
closet
that bedroom
pos-
trolled substance while
converting grams
charts
ounces and
to
session
control of a firearm violation
pounds.1
ounces to
Next to these charts
124.401(l)(c)(3),
Iowa
Code sections
purse containing
on a shelf
a woman’s
was
124.401(1)(e) (1997).
urges
He
that
a .22
revolver.
formed
pistol
caliber
That
evidence was
insufficient
establish his
charge
the basis
immedi-
involving
for the
and control of a fire-
ate
or control of
firearm.
arm. The court of
affirmed the
judgment of the district court. After re-
principal
testified that his
Defendant
viewing
considering
record and
place of
was
He
residence
Waterloo.
presented,
arguments
judg-
we vacate the
Burlington
claimed
he had come to
that
appeals.
judg-
ment of the court of
The
custody squabble
mediate a child
between
reversed,
ment of the
court is
and
district
daughter
his
and son-in-law who lived
resentencing
the case remanded for
of de-
time,
city. During part
that
both
this
fendant.
daughter
his
and son-in-law
confined
were
evidence,
County jail.
favorably
Following
viewed most
to-
Moines
Des
State,
prior
jail,
that
his
ward
reveals
to the
release from
defendant’s son-in-
charges
daughter’s
initiation of these criminal
defen-
law took
one
1. This
not the closet which the cocaine
ent room.
base was
closet was
found. That
in a differ-
quires
showing
children and
from the area.
the usual
absconded
counsel
perform
failed to
an essential duty
that he
testified
remained
See,
prejudice
resulted therefrom.
daughter recover
help
around to
her
e.g.,
Hopkins,
apartment
stayed
child. He
of his
(Iowa 1998).
eventually had
daughter,
they
give
but
*3
up
it
for financial reasons. He testified
case,
In
the
both the breach-of-
that he
visited the Scott resi-
frequently
duty component
prejudice
and the
compo-
dence
on occasion. He
slept
and
there
nent of defendant’s ineffective-assistance
having any knowledge
denied
of the re-
depend entirely
claim
on the merit of the
in
purse
volver that
Scott’s
was contained
claim that his trial counsel failed to assert.
that a firearm
If a
any
closet shelf or
of
motion to withdraw the issue of fire-
arm possession
jury
in
control
kind was
the home.
or
from the
would have been successful and
re-
thus
Much
testimony
of defendant’s
concern-
sentence,
duced
a
to
failure
ing
living
his
arrangements was.corrobo-
make that motion was indeed a
of
breach
by
rated Ms.
She also
Scott.
testified that
an essential duty
prejudicial.
was
and
knowledge of
defendant had no
the exis-
Conversely, if
evidence
the
was sufficient
tence of the .22
revolver.
tes-
caliber
She
to submit the
of
issue
defendant’s immedi-
home,
tified that he did not live
her
possession
ate
or control of a
to
firearm
although he
frequently.
would visit
Occa-
the jury,
challenge
the failure to
that ac-
sionally
sleep
he
with her in
would
the
tion was not ineffective assistance of coun-
and
northwest bedroom
other times he
sel.
slept
living
on a couch in the
room. She
On the merits of defendant’s claim that
testified that the .22 revolver was hers and
the evidence was insufficient to
that
show
given
by
her
to her
ex-husband.
he
immediate
or control
She stated that
had never
she
advised
firearm,
of a
defendant and the
are
State
defendant
existence.
gun’s
of the
agreement
on some matters. These
Defendant was convicted
two counts
are:
delivery
of a controlled substance as an
(1) Based
State v. Eickelberg,
on
574
habitual offender based on the two con-
(Iowa 1997),
1,
pos-
5
immediate
trolled buys. He was also convicted of
pos-
session of a firearm means actual
possession with intent
to deliver a con-
person.
session on one’s
trolled
pos-
substance while
immediate
(2)
Eickelberg,
Also
on
immedi-
based
firearm,
session or
a
which
control of
is a
may
ate
firearm
control of a
be estab-
appeal.
matter at issue on this
Other facts
showing that
by
lished
the defendant
relevant to this
will be
appeal
discussed
proximity
weap-
was in
to
such close
the
legal
connection
presented.
with the
issues
on as to claim immediate dominion over
it. Eickelberg,
the is cases of exclu- Jury II. on Instructions Immediate by the the infer- possession sive accused of a Possession or Control Fire- knowledge ence of is rebuttable and not arm. But where the has conclusive. accused possession in exclusive the not been of urges that the Defendant also dis premises joint only possession, but failing trict court to include erred the knowledge presence the the sub- of of possession instructions defining premises ability and the stances or control a firearm the element of of over by maintain control them knowledge of the firearm’s existence. The accused will not be but must be inferred of appeals agreed jury court by proof proof may established Such have It should been so instructed. con establishing consist either evidence of cluded, however, that the omission was accused, knowledge by actual or evi- had harmless. The district court instruct incriminating dence or statements of jury required ed the that the jury might circumstances which a from physical show defendant’s “direct control lawfully knowledge by the accused infer person.” of the firearm on or about his the substances on the presence The court of that knowl appeals concluded premises. inheres edge gun’s presence in a added). . (emphasis Id. at 23 will finding of such control. This issue However, be retried in case. The circumstantial evidence on which bar, establish for the benefit of the we State relies to bench alleged of the have been the accused. tence and location substance controlled in instruc- trial courts to include admonish defining the immediate
tions of knowl- of a firearm the element
control and loca- of the firearm’s existence
edge
tion. presented
We have considered all issues the court
and conclude that the decision of judg- should be vacated.
ment of the district court is reversed and remanded to that court for resen- case III
tencing on count of the trial informa- finding
tion in the absence of a that defen- or control
dant had
aof firearm. AP-
DECISION OF COURT OF VACATED; DISTRICT COURT
PEALS AND RE- REVERSED
JUDGMENT
MANDED. TERNUS, J., justices except
All concur specially.
who concurs
TERNUS, (concurring specially). Justice opinion
I in the court’s for two concur First, opinion signals our
reasons. proper application return to a
court’s as principles constructive v.
set forth
(Iowa 1993). Secondly, opinion implic- our
itly rejects the erroneous application principles Simpson,
those made (Iowa 1995).
STATE Leroy HOUTS, Jr., Appellee.
Dennis
No. 99-1792.
Supreme Court of Iowa.
Feb. 2001.