State v. Draper, 88-592

• Decision Date: 20 June 1990
• Docket Number: No. 88-592,88-592
• Citation: 457 N.W.2d 600
• Parties: STATE of Iowa, Appellee, v. Schery Ann DRAPER, Appellant.
• Court: Iowa Supreme Court

Page 600

457 N.W.2d 600

STATE of Iowa, Appellee, v. Schery Ann DRAPER, Appellant.

No. 88-592.

Supreme Court of Iowa.

June 20, 1990.

Rehearing Denied July 20, 1990.

Stanley E. Munger and David L. Reinschmidt of the Munger Law Firm, Sioux City, for appellant.

Thomas J. Miller, Atty. Gen., Bruce Kempkes, Asst. Atty. Gen., Thomas S. Mullin, County Atty., and J. Keith Rigg, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and LARSON, CARTER, LAVORATO and NEUMAN, JJ.

McGIVERIN, Chief Justice.

Defendant Schery Ann Draper, her husband, Robert Draper, and three other individuals were charged by joint trial information with certain violations of the Iowa Controlled Substances Act, Iowa Code chapter 204 (1987). In addition, Drapers were alleged to be habitual offenders under Iowa Code section 902.8.

Schery's case was tried to the jury at the joint trial of all five defendants. The jury found Schery guilty of two counts of delivery of a controlled substance (methamphetamine) in violation of Iowa Code section 204.401(1) (counts I and II); one count of possession of a controlled substance (methamphetamine) with intent to deliver in violation of Iowa Code section 204.401(1) (count III); and one count of possession of a controlled substance (marijuana) in violation of Iowa Code section 204.401(3) (count IV).

After the substantive offense verdicts were returned, Schery's habitual offender status was tried to the jury. The jury found Schery to be a habitual offender under Iowa Code section 902.8.

Schery's posttrial motions were overruled. The court entered judgments of conviction on the jury verdicts and sentenced Schery to a term of imprisonment not to exceed fifteen years on each of counts I, II and III, and one 180-day term of imprisonment on count IV, all terms to be served concurrently. The court ordered that Schery, as a habitual offender, not be eligible for parole until she served three years of her sentences on counts I, II and III in prison. See Iowa Code § 902.8.

The jury found Robert Draper guilty of the same counts on which it found Schery guilty, and also found Robert to be a habitual offender. ¹ One of the other three codefendants (Patrick Harper, Schery's cousin, who lived in Drapers' home) died during the trial. The other two (Randy Frederick and Tommy Whinery) were convicted as charged, and sentenced.

Schery appealed her convictions and sentences. We transferred the case to the court of appeals.

In the court of appeals Schery argued, among other things, that the sentences given her by the district court on counts I, II and III are illegal because they are more harsh than authorized by the Iowa Code. The court of appeals held that the sentences on those counts are illegal because they are more lenient than allowed by the Iowa Code. That court affirmed Schery's convictions but vacated the sentences on counts I, II and III, reasoning that on each of those counts the district court had imposed an illegal mandatory minimum prison sentence of three years under Iowa Code section 902.8 rather than the requisite five years under Iowa Code section 204.413. The case was remanded for resentencing on those counts.

We granted Schery's application for further review to consider the several issues raised therein.

After considering the record and arguments of counsel, we believe the court of appeals correctly decided the case. Of the issues raised on further review, only the sentencing issue merits discussion here. We, therefore, affirm the decision of the court of appeals and limit our discussion of the law to several aspects of the sentencing issue. We state the basic facts of the case for informational purposes.

I. Background facts and proceedings. With the help of an informant, Elias Spiro Zappas, Jr., undercover officer Mark Skaff of the Sioux City police department bought methamphetamine from Frederick and Whinery on four occasions in June 1987. In all, about $3400 worth of methamphetamine was purchased. Skaff wore a wireless transmitter as the deals were consummated.

The first two transactions occurred on June 2 and June 5, after which Frederick informed Skaff that future transactions would have to wait because his "main people" were "on a little vacation."

The third transaction occurred on June 16 when Skaff purchased methamphetamine packaged in a plastic vial with "Anco 100" imprinted on its bottom. Skaff paid for this methamphetamine with $600 in marked bills.

During their secretly taped conversations with Skaff on June 2, 5 and 16, Frederick and Whinery spoke about how they and several other people worked with a "boss" and "boss lady" in the illegal drug business. Frederick described how methamphetamine was packaged for sale on an "assembly line" using inositol to dilute the drug, at a house where they kept a police scanner tuned to police frequencies. Frederick explained that he could be reached over the telephone via his electronic pager, the number of which Whinery had previously given to Skaff.

Frederick was under surveillance for a time on June 18. He was observed driving to and entering Drapers' house in Sioux City immediately after telling Zappas that he (Frederick) was going to check on the availability of drugs for Skaff. Minutes after Frederick entered Drapers' house, Whinery telephoned Zappas to say that methamphetamine was available for the fourth transaction.

The fourth transaction occurred in the evening on June 19. For $2400, Skaff bought methamphetamine packaged in a plastic bag marked with an "O" in felt-tip pen. Frederick and Whinery were immediately arrested. Frederick's car was found to contain more methamphetamine and "Anco 100" vials. About 11:00 p.m., while Frederick and Whinery were being booked, a message came over Frederick's pager: "Randy, this is Schery. Give me a call at home."

Armed with a valid search warrant, officers of the Sioux City police department entered Drapers' house shortly after midnight.

From Drapers' kitchen the officers seized, among other things, a police scanner; a "Rolodex" open to the card with Frederick's name and pager number; a mirror with a straw, two razor blades, and methamphetamine on it; and a purse with Schery's driver's license, Robert's travel discount cards, $500 cash, and about $10,000 worth of methamphetamine, some of it packaged in plastic bags marked with an "O" in felt-tip pen.

From Drapers' upstairs bedroom the officers seized three marked hundred-dollar bills Skaff had given Frederick and Whinery on June 16 in exchange for methamphetamine; a plastic bag of marijuana; another $10,000 cash; and an electronic detector of wireless transmitters, commonly called a "bug alert."

From a basement recreation room the officers seized plastic vials with "100 Anco" imprinted on the bottom; a bottle of inositol; plastic bags; a commercial heat sealer of plastic bags; a box containing a measuring scale, spoons, a razor blade holder, and a felt-tip pen; a grinder; and another scale.

In Harper's unlocked basement bedroom, the officers found a locked sea chest, with the key on a shelf. From the chest the officers seized over four ounces of marijuana; over $2400 cash; a large bag of pure methamphetamine and several small bags of pure and diluted methamphetamine, together worth over $27,000; a bag of inositol; and a photograph of Frederick and Harper in Harper's bedroom. From the room the officers seized, among other things, a scale, two glass vials of methamphetamine, and three boxes of plastic bags.

In short, the house was infested with drugs and drug sales paraphernalia. In light of the secretly taped conversations, many of the seized items linked Drapers, Whinery, Frederick and Harper to each other and to officer Skaff's drug purchases.

II. The correct sentence. Schery was convicted of three violations of Iowa Code section 204.401(1) with respect to methamphetamine. Methamphetamine is a schedule II controlled substance. Iowa Code § 204.206(4)(b). It is not cocaine or a narcotic drug. See Iowa Code § 204.101(18) (defining "narcotic drug" so as to exclude methamphetamine). As such, violation of section 204.401(1) with respect to methamphetamine is a class "D" felony. Iowa Code § 204.401(1)(b).

A. The maximum sentence. In sentencing Schery, the district court looked first to Iowa Code section 902.9 to determine the appropriate sentence for a class "D" felony. That statute provides, in relevant part:

The maximum sentence for any person convicted of a felony shall be that prescribed by statute or, if not prescribed by statute, if other than a class "A" felony shall be determined as follows:

* * * * * *

2. An habitual offender shall be confined for no more than fifteen years.

* * * * * *

4. A class "D" felon, not an habitual offender, shall be confined for no more than five years....

Iowa Code § 902.9. The term "habitual offender" is defined in Iowa Code section 902.8, which provides:

An habitual offender is any person convicted of a class "C" or a class "D" felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, by the law under which the person is convicted, it is so classified at the time of the person's conviction. A person sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of three years.

The jury found that Schery is a habitual offender under Iowa Code section 902.8. The district court concluded that the maximum prison sentence for each of Schery's three convictions under Iowa Code section 204.401(1) is no more than fifteen years. On each of counts I, II and III, the court sentenced Schery to a concurrent term of imprisonment not to exceed fifteen years.

Schery argues, however, that Iowa Code sections 902.8 and 902.9(2) do not apply to the sentencing of violators of the Iowa Controlled Substances Act. She asserts that because chapter...