State v. DeCamp, 00-0101.

• Decision Date: 14 February 2001
• Docket Number: No. 00-0101.,00-0101.
• Citation: 622 N.W.2d 290
• Parties: STATE of Iowa, Appellee, v. Gary Dean DeCAMP, Appellant.
• Court: Iowa Supreme Court

622 N.W.2d 290

STATE of Iowa, Appellee, v. Gary Dean DeCAMP, Appellant.

No. 00-0101.

Supreme Court of Iowa.

February 14, 2001.

Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Terry E. Rachels, County Attorney, and Ryan Ellis, Assistant County Attorney, for appellee.

Considered en banc.

CADY, Justice.

The primary issue we consider in this appeal is whether prior convictions for possession of a controlled substance can be considered under the sentencing enhancement provisions of Iowa Code section 124.401(5) (1999), when the prior convictions predated the amendment providing for enhanced sentencing and were identified by a different code section. We conclude the prior convictions can be considered and affirm the judgment and sentence of the district court. We preserve an additional issue of ineffective assistance of counsel for postconviction relief proceedings.

I. Background Facts and Proceedings.

Gary DeCamp was arrested for possession of a controlled substance and carrying a concealed weapon on November 11, 1998. The concealed weapon was a knife in a sheath attached to DeCamp's belt. The weapon was observed by a state trooper after he stopped the automobile driven by DeCamp for failing to dim the high beam lights. The trooper conducted a pat down of DeCamp after he observed the weapon, and found methamphetamine in a cylindrical object located in a pocket of DeCamp's pants. A subsequent search of the interior of the vehicle uncovered additional drugs contained in a vial.

DeCamp was handcuffed and placed in the trooper's patrol car. After the trooper informed DeCamp of his Miranda rights, DeCamp acknowledged to the trooper that he owned the drugs discovered in the car and that he has had a long history of a drug problem.

The stop was recorded by a video camera mounted on the trooper's car. The trooper also wore a microphone which enabled the video tape to record sound. Pursuant to a state patrol policy, the video tapes of stops made by troopers are erased ninety days after an arrest.

DeCamp was formally charged by a trial information on November 20, 1998, with carrying a concealed weapon and possession of a controlled substance. The trial information alleged DeCamp had been convicted of possession of a controlled substance on three prior occasions, and charged the current possession offense as a felony under the enhanced sentencing provisions of Iowa Code section 124.401(5). The trial information claimed DeCamp had been convicted of possession of a controlled substance on December 3, 1992, May 25, 1994, and April 11, 1996.

DeCamp filed a motion for discovery on January 8, 1999. He requested the State produce a variety of items, including any recorded statements or photographs. The district court granted the motion on January 13, 1999. DeCamp learned at a subsequent hearing on a motion to suppress that the stop made by the trooper had been videotaped. This video tape, however, was never produced by the State.

At trial, the trooper who arrested DeCamp testified that the video tape had been erased pursuant to the state patrol policy ninety days after the arrest and prior to the time the county attorney contacted him to inquire about the video tape. DeCamp denied at trial that he made any admissions to the trooper following the stop, and testified he believed the video tape would have supported his testimony. Nevertheless, defense counsel did not request that a spoliation instruction be given to the jury, and did not attempt to establish prosecutorial bad faith in failing to produce the video tape.

DeCamp was found guilty of the charges by the jury. He then admitted the three prior convictions for possession of a controlled substance. The district court subsequently sentenced DeCamp on the offense of possession of a controlled substance by elevating the crime to a felony based on the three prior convictions. DeCamp claimed the three convictions should not have been used to elevate the crime to a felony because the enhanced sentencing provisions of section 124.401(5) do not include prior convictions which predated the effective date of the enactment of the enhanced sentencing provisions or those which arose when the crime of possession of a controlled substance was defined by a different section in the Code.

DeCamp appeals. He claims his trial counsel was ineffective for failing to establish prosecutorial bad faith in the erasure of the video tape and to request a destruction of evidence instruction. He also claims the trial court erred in elevating the possession conviction to a felony and imposing the enhanced sentencing provision.

II. Standard of Review.

We review claims of ineffective assistance of counsel de novo. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We review the challenge to a sentencing statute for correction of errors at law. State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999). Likewise, we review issues of statutory interpretation for correction of errors at law. State v. Daniel, 574 N.W.2d 333, 335 (Iowa 1998).

III. Enhanced Sentencing.

We first address the claim that the district court erred by considering DeCamp's prior convictions for possession of a controlled substance in enhancing his sentence. The crime of possession of a controlled substance is defined in section 124.401(5). This section also provides for a penalty for the crime, and for enhanced punishment based on prior convictions. In pertinent part, the subsection provides:

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense. A person who commits a violation of this subsection and who has previously been convicted of violating this subsection is guilty of an aggravated misdemeanor. A person who commits a violation of this subsection and has previously been convicted two or more times of violating this subsection is guilty of a class "D" felony.

Iowa Code § 124.401(5) (emphasis added).

The enhanced sentencing language for prior convictions was not added to the statute until 1998. See 1998 Iowa Acts ch. 1138, § 25 (codified at Iowa Code § 124.401(5) (1999)). Additionally, prior to 1993, the offense of possession of a controlled substance was defined in section 204.401(3). See Iowa Code § 204.401(3) (1991). However, the Code editor transferred section 204.401 to section 124.401 in 1993, and section 204.401(3) became section 124.401(3). See Iowa Code § 124.401(3) (1993). The definition and degree of the crime, nevertheless, did not change. Compare id., with Iowa Code § 204.401(3). In 1996, section 124.401(3) was then renumbered to its present section 124.401(5) to accommodate amendments to other parts of section 124.401. See 1996 Iowa Acts ch. 1164, §§ 1, 2, 4 (codified at Iowa Code § 124.401 (1997)).

DeCamp argues the enhanced punishment provisions only apply to prior convictions under section 124.401(5), and not prior convictions from when the crime was previously defined in section 124.401(3) or section 204.401(3), because the legislature specifically limited the enhanced punishment to "a person who commits a violation of this subsection and has previously been convicted ... of violating this subsection." Iowa Code § 124.401(5) (emphasis added). Thus, DeCamp asserts he has no prior convictions under section 124.401(5) because his prior convictions occurred when the crime was defined under either section 124.401(3) or section 204.401(3). DeCamp also asserts that statutes which are amended to provide for enhanced punishment for prior convictions are presumed to only apply prospectively. See State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999)

.

In Tornquist, we faced the question whether the sexually predatory offense statute, which was enacted effective July 1, 1996 to provide for enhanced punishment based on a prior conviction of a sexually predatory offense, permitted a pre-July 1, 1996 conviction to be used to enhance a subsequent conviction for a sexually predatory offense. Id. at 306. As part of our analysis, we recognized statutes are presumed to be prospective in their operation, and concluded that nothing in the statute expressed a legislative intent that the statute should be applied retroactively. Id. at 307. Moreover, we found the language used by the legislature in that statute revealed an intent that only prior convictions after the effective date of the enactment be considered. Id. Thus, we held that the sentencing enhancement language of the sexually predatory statute only applies to prior convictions after July 1, 1996. Id.

Although Tornquist correctly considered the legislature's intent in concluding that the enhanced punishment provisions only apply to prior convictions after the effective date of the enactment which established enhanced punishment for prior convictions, that portion of the analysis which included a consideration of the principles of prospective and retrospective application of a statute was not relevant and confused the issue. See Iowa Code § 4.5 (1999) ("statute is presumed to be prospective in its operation unless expressly made retrospective"); Tornquist, 600 N.W.2d at 307. We disavow the prospective application analysis used in Tornquist.

The principle that statutes are presumed to apply only prospectively means they "apply only to actions [that] arise after the effective date of the statute." Frideres v. Schiltz, 540 N.W.2d 261, 264 (Iowa 1995). The only relevant action for the purpose of determining the prospective or retrospective application of a...