State v. Sahir, No. 5-940/04-2042 (IA 4/12/2006)

• Decision Date: 12 April 2006
• Docket Number: No. 5-940/04-2042,5-940/04-2042
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. NASSER M. SAHIR, Defendant-Appellant.
• Court: Iowa Supreme Court

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STATE OF IOWA, Plaintiff-Appellee, v. NASSER M. SAHIR, Defendant-Appellant.

No. 5-940/04-2042

Court of Appeals of Iowa.

Filed April 12, 2006

Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.

Nasser Sahir appeals his conviction for stalking. CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.

Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine O'Connell Corken Assistant County Attorney, for appellee.

Considered by Huitink, P.J., and Mahan and Hecht, JJ.

MAHAN, J.

Nasser Sahir appeals his conviction for stalking, a class D felony, in violation of Iowa Code section 708.11(3)(b)(1) (2001). First, he argues the district court erred when it did not submit the issue of his protective orders to the jury at a sentencing trial. If we find this claim was not preserved, Sahir argues his counsel was ineffective by failing to object. Second, he argues his trial counsel inadequately objected to alleged prosecutorial misconduct. We affirm Sahir's conviction, vacate his sentence, remand for resentencing, and preserve his ineffective assistance of counsel claim based on prosecutorial misconduct for any postconviction relief proceedings.

I. Background Facts and Proceedings

Nasser and Carol Sahir were married for nearly thirteen years. After they decided to divorce, Carol and the couple's three daughters moved into an apartment. Sahir began following Carol and parking outside her apartment and workplace to watch her. Carol obtained three protective orders against Sahir. Sahir was eventually charged with stalking in violation of section 708.11(3)(b)(1) and attempted burglary in the third degree in violation of section 713.2 and 713.6B. The trial information charging Sahir with stalking also noted he was subject to a protective order.

Sahir complains of two issues occurring at his trial. First, the trial court determined that the existence of the protective orders was a sentencing enhancement criterion, rather than an element of the offence of stalking. As a result, the court removed the element requiring the State to prove that Sahir was subject to protective orders from the jury instructions.¹ Though given the opportunity, neither counsel objected. Later, the court's order concerning the jury's verdict noted Sahir testified to the existence of the protective orders. It requested that counsel make a written filing if the protective orders were in dispute for purposes of sentencing. However, the protective orders were not disputed. Sahir argues the orders should have been submitted for a jury determination.

Second, his counsel did not object to several comments the prosecutor made during Sahir's cross-examination and the closing argument. Sahir alleges these comments were prosecutorial misconduct.

The court sentenced Sahir for stalking committed while a civil protective order was in existence, a class D felony in violation of section 708.11(3)(b)(1). Sahir appeals his conviction and sentence.

II. Standard of Review

Sahir alleges violations of his rights under the Sixth and Fourteenth Amendments to the United States Constitution, and article one, section ten, of the Iowa Constitution. We review constitutional claims de novo. In re Detention of Hodges, 689 N.W.2d 467, 470 (Iowa 2004). We give deference to the district court's credibility determinations, but are not bound by its fact determinations. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

III. Merits

A. Protective Orders

We first clarify what this appeal is not about. Sahir is not appealing the jury's verdict of guilty to the offense of aggravated misdeameanor stalking. The district court found, and Sahir does not contest, the existence of a protective order is not an element of stalking but is instead a factor of sentence enhancement. State v. Beecher, 616 N.W.2d 532, 538 (Iowa 2000). Therefore, Sahir does not contest the district court's refusal to submit the issue of the protective order to the jury at the initial trial. As such, the jury's verdict of guilty to the offense of stalking must stand unless subsequently reversed on the ineffective assistance of counsel grounds raised by the defendant.

The crux of Sahir's appeal is that the district court erred in failing to submit the sentencing enhancement issue to a jury at a second trial proceeding dealing only with sentencing. The problem with that argument is that Sahir failed to take any steps whatsoever to preserve this issue for appeal.

Sahir relies on Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), to argue the district court erred when it failed to submit the issue of the existence of protective orders to the jury. This, however, is the first time Sahir has raised this argument. At trial, he (1) testified to the existence of the orders; (2) stipulated in writing to the existence of the orders; (3) agreed with the district court that the jury need not be instructed on the orders; and (4) failed to raise any concern when the district court gave him ample notice it would be considering the orders for sentence enhancement. Further, no steps were taken to bring the issue to the attention of the district court at sentencing. In short, the existence of the orders was never at issue during either the initial trial or the sentencing.

Further, Sahir's challenge is not to the court's use of discretion during his sentencing, nor to the legality of the sentence itself. If either of those challenges were at issue, Sahir would not have had to preserve his claim. SeeState v. Wise, 697 N.W.2d 489, 492 (Iowa 2005) (concluding no preservation was necessary where conditional sentence was not authorized by statute and therefore void, but citing State v. Cooley, 587 N.W.2d 752 (Iowa 1998)); State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001) (concluding no preservation was necessary where sentence was contrary to the Code and therefore void); State v. Oritz, 618 N.W.2d 556, 561-62 (Iowa 2000) (finding no preservation was necessary where sentence was based on improper interpretation of the statute and therefore void); State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999) (concluding no preservation was necessary for illegal sentence where trial court applied statute retrospectively rather than prospectively, thus sentencing defendant for improper enhancements); Cooley, 587 N.W.2d at 754 (concluding no preservation was necessary where defendant would have had to question the court's discretion at the time of sentencing); State v. Boltz, 545 N.W.2d 9, 10 (Iowa 1995) (finding error was preserved when defendant raised on appeal the issue of the court's failure to articulate reasons for her discretionary sentence); State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994) (rejecting rule that defendant had to object during sentencing when sentence imposed was discretionary); State v. Stratton, 519 N.W.2d 403, 405 (Iowa 1994) (finding no preservation necessary where court failed to merge offenses for the purposes of sentence as required by the Code); State v. Austin, 503 N.W.2d 604, 606-07 (Iowa 1993) (concluding no preservation was necessary where court missed amendments to Code that changed sentencing); State v. Young, 292 N.W.2d 432, 435 (Iowa 1980) (concluding defendant need not preserve error for an illegal sentence); State v. Wilson, 294 N.W.2d 824, 826 (Iowa 1980) (finding error preservation unnecessary where defendant had no opportunity to object to district court's failure to include reasons for sentencing in sentencing order); andState v. Marti, 290 N.W.2d 570, 589 (Iowa 1980) (same); see also Iowa R. of Crim. P. 2.24(5)(a) (stating an illegal sentence may be corrected at any time).

Instead, Sahir asserts a procedural constitutional claim to a legal sentence. See Schriro v. Summerlin, 542 U.S. 348, 353-55, 124 S. Ct. 2519, 2523-24, 159 L. Ed. 2d 442, 448-50 (2004) (noting the Sixth Amendment right to have a jury find sentence enhancements is properly characterized as a procedural right). He is required to raise such a claim with the district court. See State v. Ramirez, 597 N.W.2d 795, 797 (Iowa 1999) (denying defendant's cruel and unusual punishment challenge because he failed to bring it in the trial court, but reviewing the challenge through ineffective assistance); State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (noting that a challenge to a sentence imposed in accordance with the law is governed by normal error preservation and reviewing defendant's constitutional claim through ineffective assistance); State v. Hochmuth, 585 N.W.2d 234, 237 (Iowa 1998) (finding defendant's equal protection claim not preserved because it was not raised below); State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (finding sentence was not illegal but mandatory and, for preservation purposes, constitutional challenge had to be made before the trial court); State v. McCright, 569 N.W.2d 605, 608 (Iowa 1997) (noting error preservation does not apply to illegal sentences, but that a sentence is not void even though it may be subject to a constitutional challenge); State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995) (refusing to entertain defendant's constitutional double jeopardy challenge but reviewing the legality of the sentence through Iowa's statutory equivalent of double jeopardy). Because Sahir failed to raise the issue below, we cannot review it.² Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002); McCright, 569 N.W.2d at 607.

In the alternative, Sahir asks that we examine his claim through ineffective assistance of counsel. He argues his counsel was ineffective when he failed to object to the district court's failure to submit the issue of the protective orders to a jury at the time of sentencing.

In order to show ineffectiveness of counsel,...