State of Iowa v. Darin Dwayne Ware

IN THE COURT OF APPEALS OF IOWA

No. 13-0831
Filed July 30, 2014

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DARIN DWAYNE WARE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.

The defendant appeals his sentences for delivery of a simulated controlled

substance, delivery of a controlled substance, and two counts of possession of a

controlled substance with intent to deliver. AFFIRMED.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Stephan Bayens, Assistant

County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.

Darin Ware appeals his sentences for delivery of a simulated controlled

substance, delivery of a controlled substance, and two counts of possession of a

controlled substance with intent to deliver. Ware waived his claim his sentence

of sixty-five years in prison constitutes cruel and unusual punishment. He has

not shown he received ineffective assistance of counsel due to defense counsel’s

failure to (1) present an argument advocating for Ware to attend substance

abuse treatment, which Ware believed would make him eligible for probation, (2)

argue that his sentence could have been reduced because he cooperated in the

prosecution of other persons involved in the sale or use of controlled substances,

and (3) fully investigate the allegations in this matter through discovery requests

and a motion to suppress. We affirm.

I. Background Facts & Proceedings

Ware was charged with eleven drug-related charges. He entered into a

plea agreement in which he agreed to plead guilty to four of the charges and the

remainder would be dismissed. On March 18, 2013, Ware pled guilty to delivery

of a simulated controlled substance as a second or subsequent offender, in

violation of Iowa Code sections 124.401(1)(c)(2)(b) and 124.411 (2011), a class

“C” felony; possession of a controlled substance (methamphetamine) with intent

to deliver as a second or subsequent offender, in violation of sections

124.401(1)(b)(7) and 124.411, a class “B” felony; possession of a controlled

substance (marijuana) with intent to deliver as a second or subsequent offender,

in violation of sections 124.401(1)(d) and 124.411, a class “D” felony; and
3

delivery of a controlled substance (methamphetamine) as a second or

subsequent offender, in violation of sections 124.401(1)(c)(6) and 124.411, a

class “C” felony. The district court accepted Ware’s guilty pleas.

Under section 124.411(1), as a second or subsequent offender Ware was

facing up to 150 years in prison for the offenses he pled guilty to. Pursuant to the

plea agreement, the parties jointly agreed to recommend certain sentences that

would give Ware up to sixty-five years in prison. At the sentencing hearing the

prosecutor and defense counsel both recommended Ware receive a sentence of

sixty-five years in prison. The court sentenced Ware to terms of imprisonment

not to exceed ten years, sixty-five years, five years, and ten years, to be served

concurrently, for a total term of imprisonment of sixty-five years. Ware was

required to serve a mandatory minimum one-third of his sentence, and the court

reduced that by one-third because Ware had accepted responsibility by pleading

guilty. Ware has appealed his sentences.

II. Eighth Amendment

Ware claims his sentence of sixty-five years in prison constitutes cruel and

unusual punishment. Ware does not provide any argument or legal citations to

support his claim the sentence constitutes cruel and unusual punishment under

the Eighth Amendment of the United States Constitution. A party’s “[f]ailure to

cite authority in support of an issue may be deemed waiver of that issue.” Iowa
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R. App. P. 6.903(2)(g)(3). We conclude this issue has been waived.1 See State

v. Root, 801 N.W.2d 29, 30 n.1 (Iowa Ct. App. 2011).

III. Ineffective Assistance

Ware claims he received ineffective assistance from defense counsel at

his sentencing hearing. 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, a defendant must show (1) the attorney

failed to perform an essential duty, and (2) prejudice resulted to the extent it

denied the defendant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa

2009). A defendant has the burden to show by a preponderance of the evidence

counsel was ineffective. See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa

1992).

A. Ware claims defense counsel should have presented an argument

advocating for Ware to attend substance abuse treatment, which he believes

would make him eligible for probation under section 124.409.

When the prosecutor set out the parties’ plea agreement for the record, he

stated,

Furthermore, at the time of sentencing the parties will jointly
recommend that in FECR261250 Mr. Ware be sentenced to an
indeterminate term of incarceration not to exceed 65 years with a
requirement he serve one-third of that time prior to being eligible for
parole, and we will urge the Court to reduce that one-third by one-
third for his acceptance of responsibility, that he will be sentenced
to an indeterminate term not to exceed ten years in FECR253709,

1
If we were to address this issue we would note Ware has a lengthy criminal history
and “[l]engthy sentences are more likely to be constitutional when imposed on offenders
with lengthy criminal histories.” See State v. Oliver, 812 N.W.2d 636, 650-51 (Iowa
2012).
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again, with a mandatory minimum one-third, that he be sentenced
to an indeterminate term not to exceed five years in FECR262011,
and that he serve an indeterminate term not to exceed ten years in
FECR262640, with each of those three being ordered to be served
concurrently to that 65-year prison sentence in FECR261250.

Defense counsel agreed this was an accurate statement of the plea agreement.

Additionally, Ware stated he understood the terms of the plea agreement.

Thus, under the terms of the plea agreement the parties were required to

“jointly recommend” the prison sentences that were ultimately imposed by the

court. In essence, Ware contends defense counsel should have argued for

something different than what the parties had agreed to as part of the plea

agreement. A violation of the terms of a plea agreement requires reversal of the

conviction. See State v. Fannon, 799 N.W.2d 515, 520 (Iowa 2011). On appeal,

however, Ware does not ask to withdraw his guilty plea; he asks only to have his

sentences reversed.

Even if we were to find defense counsel could have legitimately argued for

a different sentence than that which was part of the plea agreement, Ware was

not eligible for probation. Section 907.3(3)(e) provides the court may not

suspend the sentence for “a violation of section 124.401, subsection 1,

paragraph ‘a’ or ‘b,’ and the controlled substance is methamphetamine.” Ware

pled guilty to possession of a controlled substance (methamphetamine) with

intent to deliver as a second or subsequent offender, in violation of section

124.401(1)(b)(7). We conclude the more specific provision in section 907.3(3)

applies rather than the general provision of section 124.409. See State v.

Kramer, 773 N.W.2d 897, 900 (Iowa Ct. App. 2009) (noting a specific sentencing
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statute controls over a general sentencing statute). We conclude Ware has not

shown he received ineffective assistance due to counsel’s failure to raise this

meritless issue. See State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013).

B. Ware also argues defense counsel should have argued that his

sentence could have been reduced under section 901.10(2) because he

cooperated in the prosecution of other persons involved in the sale or use of

controlled substances.

Section 901.10(2) provides:

If the defendant cooperates in the prosecution of other persons
involved in the sale or use of controlled substances, and if the
prosecutor requests 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.

There are two requirements for application of this section: (1) the defendant has

cooperated in the prosecution of other persons involved in the sale and use of

controlled substances; and (2) “the prosecutor requests an additional reduction

based upon such cooperation.” State v. Johnson, 630 N.W.2d 583, 587 (Iowa

2001). A reduction is dependent upon a prosecutor’s request, giving the

prosecutor the power to prevent any reduction at all. Id. at 589.

Leaving aside the issue of whether Ware cooperated in the prosecution of

others, the prosecutor in this case did not request a reduction of his sentence

based on cooperation. Because one of the two requirements was not met,

section 901.10(2) does not apply. Ware has not shown he received ineffective

assistance due to counsel’s failure to raise this meritless issue. See Brothern,

832 N.W.2d at 192.
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C. Ware claims defense counsel failed to “fully investigate the

allegations in this matter through the discovery requests and a motion to

suppress.” Ware does not assert what he believes further investigation would

have discovered. Nor does he assert the result of the proceeding would have

been different, that he would not have accepted the plea agreement, if defense

counsel had engaged in further investigation. “When complaining about the

adequacy of an attorney’s representation, it is not enough to simply claim that

counsel should have done a better job.” Dunbar v. State, 515 N.W.2d 12, 15

(Iowa 199). A defendant “must state the specific ways in which counsel’s

performance was inadequate and identify how competent representation

probably would have changed the outcome.” Id. We conclude Ware has not

adequately alleged how he received ineffective assistance of counsel to permit

us to address the issue.

We affirm Ware’s convictions and sentences.

AFFIRMED.