State v. Owens

• Decision Date: 10 October 2001
• Docket Number: No. 00-1030.,00-1030.
• Citation: 635 N.W.2d 478
• Parties: STATE of Iowa, Appellee, v. Milton Wayne OWENS, Appellant.
• Court: Iowa Supreme Court

635 N.W.2d 478

STATE of Iowa, Appellee, v. Milton Wayne OWENS, Appellant.

No. 00-1030.

Supreme Court of Iowa.

October 10, 2001.

Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.

NEUMAN, Justice.

The State charged Milton Owens with being a felon in possession of a firearm, in violation of Iowa Code section 724.26 (1999),¹ as well as a number of drug-related crimes, after Davenport police executed a search warrant at an apartment he occupied. A jury found Owens guilty as charged. Owens now claims he was denied effective legal assistance because trial counsel failed to (1) move to sever trial of the firearm charge from the drug offenses or, (2) timely request that the jury only be asked to answer an interrogatory about the firearm possession, without advising it about his felony status. The State cross-appeals, citing the court's failure to properly apply sentence-enhancement provisions pertaining to Owens' habitual offender status and prior drug-related convictions. We affirm the convictions but remand for resentencing.

I. Background Facts and Legal Proceedings.

Davenport police attempted to execute a search warrant at an apartment leased by Sherrie Shelby. When no one answered, the officers broke open the door with a three-foot steel ram. They immediately saw the defendant, Milton Owens, who ran from the kitchen down a hall to a bedroom, yelling, "Police department! Search warrant!"

Two officers who chased Owens to the bedroom found him crouched on the bed, leaning over the far side with his hands on it. Officers found a .22 caliber pistol under the corner of the mattress next to Owens. They also discovered marijuana in the bedroom's closet floor and shelf, along with men's clothing.

Further search of the apartment revealed baggies of marijuana in another bedroom, a partial blunt cigar containing marijuana, and a key chain with two keys, one of which fit the vehicle officers observed Owens drive to the apartment, and the other which fit the apartment's lock. The officers also found an electronic scale, two pagers and a cell phone. There were eighty rounds of .22 caliber ammunition in a hallway closet and a substantial quantity of crack cocaine underneath cookware in the kitchen. Plastic baggies with the corners removed were found in the garbage. Officers testified the corners are used to wrap rocks of cocaine in preparation for sale.

The State charged Owens with possession with intent to deliver cocaine base while in the immediate possession of a firearm, in violation of Iowa Code section 124.401(1)(c) and (e) (Supp.1999); failure to affix a drug tax stamp, in violation of Iowa Code section 453B.12; and being a felon in possession of a firearm, a violation of Iowa Code section 724.26.² The trial information also alleged that Owens had previously been convicted of an offense relating to cocaine and had twice been convicted of a felony, making him an habitual offender. See Iowa Code §§ 124.411 (authorizing treble punishment for second-or-subsequent drug offenders); 902.8 (habitual offender sentencing).

At trial, the prosecutor told the jury that "the defense and the State stipulate that the defendant has previously been convicted of a felony." Owens' counsel readily acknowledged that, by so stipulating, prejudicial details about Owens' prior criminal history would be kept from the jury. But defense counsel objected to the court's inclusion of the stipulation in its statement of the case to the jury, contending the stipulation was merely evidence, not fact, and could be accepted or rejected by the jury. The court overruled Owens' objection to the instruction.

The jury found Owens guilty as charged. Owens then stipulated on the record that the State could not only prove his conviction of two prior felonies but that one of those felonies was drug-related.

In Owens' subsequent motions for new trial and in arrest of judgment, he reiterated his claim that the court should not have referred to the felony stipulation in its statement of the case. He also argued, for the first time, that the court should have used an entirely different method of instructing the jury on the felon-in-possession charge. Owens claimed the jury simply should have been asked to answer an interrogatory concerning his firearm possession; then, based on the parties' stipulation, the court could have entered a guilty verdict on the charge. That way, Owens argued, he would have avoided the prejudice associated with the jury's knowledge of his felony status. The court, concluding the jury was required to find Owens guilty beyond a reasonable doubt on each of the essential elements of the crimes charged, overruled Owens' motions.

For the crime of possession with intent to deliver while in control of a firearm, as an habitual offender, the court sentenced Owens to a term of imprisonment not to exceed twenty-five years. Violation of the drug stamp tax act, as an habitual violator, brought a fifteen-year term. The court also imposed a fifteen-year sentence for the felon in possession of a firearm charge. The sentences were ordered to run concurrently.

Owens appeals and the State cross-appeals.

II. Issues on Appeal/Scope of Review.

Owens seeks reversal on alternate grounds, each of which rests on alleged ineffectiveness of trial counsel: (1) that counsel should have moved to sever trial on the felon-in-possession charge from trial on the drug charges, or (2) in keeping with State v. Smith, 576 N.W.2d 634, 637 (Iowa Ct.App.1998), counsel should have urged the court to simply submit an interrogatory to the jury concerning Owens' alleged firearm possession, without mentioning his felony status. Because Owens' claims implicate his constitutional right to counsel, our review is de novo. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).

On its cross-appeal, the State claims the court erred in failing to apply the habitual offender enhancement of Iowa Code section 902.9(2) prior to enhancing Owens' sentence for possession while in control of a firearm under section 124.401(e). It also contends the court erred in concluding the trebling provisions of section 124.411 did not apply to Owens' sentence. We review these claims for the correction of errors at law. State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001).

III. Analysis.

A. Alleged ineffectiveness of counsel. To prevail on a claim of ineffectiveness of counsel, Owens must show by a preponderance of the evidence that counsel failed to perform an essential duty and that prejudice resulted. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). Failure to perform an essential duty may be established by proof that counsel's failure to raise an issue fell outside the normal range of lawyer competency. Westeen, 591 N.W.2d at 207. Ineffectiveness may not be premised, however, on failure to raise an issue having no merit. Id. We turn, then, to the merits of Owens' claims.

1. Severance of felon-in-possession charge. Iowa Rule of Criminal Procedure 6(1) provides that multiple offenses

which arise from the same transaction or occurrence ... when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise.

A decision under the rule is subject to reversal only upon proof of abuse of trial court discretion. State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992); State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985).

The parties do not dispute the fact that the charges of possession with intent to deliver, failure to affix a drug tax stamp and felon in possession of a firearm all arose from the same incident. The question is whether, had the motion to sever been made by trial counsel, the court would have exercised its discretion to sever the felon-in-possession charge from the others. We, of course, cannot speculate about what the court might have done had the motion been made. But our prior cases teach that the goal of rule 6(1) is to achieve "judicial economy through the joinder of related offenses." State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986). Assuming a proper motion had been made, the burden would have rested upon Owens to prove that any prejudice resulting to him from a joint trial outweighed the State's interest in judicial economy. Id. at 251. So the question before us is this: Would it have been an abuse of trial court discretion not to find good cause to sever in these circumstances? For the reasons that follow, we think not.

Owens contends that, by its very nature, a felon-in-possession charge puts the jury on notice of a defendant's status as a felon, thereby injecting unfairness into its deliberations. Indeed, this appears to be the conclusion reached in the case upon which Owens relies for reversal, State v. Smith. There, under similar facts, the court observed that "[t]he prejudice discretionary severance seeks to prevent includes that which inherently attends evidence of a defendant's other crimes." Smith, 576 N.W.2d at 637. Owens asks this court to draw from this observation a per se rule compelling severance whenever the State charges a felon with being in possession of weapons along with other related charges. But such a rule will not be found in Smith. The court's decision ultimately rested on its conclusion that good cause supporting a consolidation order may be overcome by "showing the jury is unable to compartmentalize the evidence offered to prove each consolidated charge." Id. Because the court of appeals believed the trial court's efforts in that regard failed, it remanded for a new trial. Id.

In any multi-charge trial, the court faces the challenge of striking a proper balance...