State v. Sahir, No. 5-940/04-2042 (Iowa App. 7/26/2006), 5-940/04-2042
| Decision Date | 26 July 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 Court of Appeals |
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Nasser Sahir appeals his conviction for stalking.
AFFIRMED.
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.
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 a jury at a separate 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 and preserve his ineffective assistance of counsel claim based on prosecutorial misconduct for possible postconviction relief 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 then relentlessly stalked and harassed Carol for a period of several months. He began following Carol and parking outside her apartment and workplace to watch her. He was eventually banned from her workplace. Carol obtained three protective orders against Sahir.1 Notwithstanding the existence of the protective orders, Sahir's behavior became more brazen. He was eventually charged with stalking in violation of section 708.11(3)(b)(1). The trial information also noted he was subject to a sentencing enhancement because of the existence of a protective order.2
The jury convicted Sahir of aggravated misdemeanor stalking. The district court, at the sentencing proceeding, found that Sahir was subject to a protective order at the time of the stalking offense and pronounced judgment on a class D felony. Sahir was sentenced to an indeterminate term of five years. The sentence was suspended, and he was placed on probation for five years.
Sahir appeals his conviction and sentence. Sahir complains of two issues occurring at his trial. The first deals with the district court determination that the existence of the protective order as a sentencing enhancement criterion could be adjudicated in this case by the court instead of a jury. Although he did not object at the time, Sahir now argues the issue of the protective order should have been submitted for a jury determination at the sentencing phase.
The second deals with his counsel's failure to object to several comments the prosecutor made during Sahir's cross-examination and the closing argument. Sahir alleges these comments were prosecutorial misconduct.
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).
We first clarify what this appeal is not about. Sahir is not appealing the jury's verdict of guilty to the offense of aggravated misdemeanor stalking. In addition, 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 guilt stage of his misdemeanor trial. As such, the jury's verdict of guilty to the offense of misdemeanor stalking must stand.
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 proceeding dealing only with sentencing. The initial 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 at sentencing. This, however, is the first time Sahir has raised this argument. At trial, he (1) testified to the existence of the protective 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. He did not request a jury trial at the sentencing phase. 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. State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001) (); State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994) ().
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) (). He is required to raise such a claim with the district court. See State v. Ramirez, 597 N.W.2d 795, 797 (Iowa 1999) (); State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (). Because Sahir failed to raise the issue below, we cannot review it.3 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, Sahir must show not only that his counsel breached an essential duty, but also that the breach prejudiced Sahir's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In reviewing Sahir's claim, we are to consider the totality of the evidence. Id. at 695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. The test we employ for the first element is objective: whether counsel's performance was outside the range of normal competency. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct. App. 1997). We start with a strong presumption that counsel's conduct was within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 687, 104 S. Ct. at 2052, 80 L. Ed. 2d at 694. The test for the second element is whether there is a reasonable probability that, without counsel's errors, the outcome of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Id.; Kone, 557 N.W.2d at 102. We only presume prejudice if counsel completely fails to subject the prosecution's case to meaningful adversarial testing. United States v. White, 341 F.3d 673, 678 (8th Cir. 2003).
Generally, we decline to decide ineffective assistance of counsel claims on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Instead, we preserve them for postconviction relief proceedings. Id. This practice ensures both that an adequate record of the claim may be developed and that the attorney charged with ineffectiveness may have an opportunity to respond. Id. We will only decide an ineffectiveness claim on direct appeal in limited situations. First, if the record shows that the claimant cannot prevail as a matter of law, we will affirm the conviction without preserving the ineffective assistance claim. State v. Graves, 668 N.W.2d 860, 869 (2003). Second, "if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial." Id. For example, we may decide the claim if counsel's performance was so glaringly incompetent we are able to determine so based on the record before us. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We have also decided the claim where the trial court has already addressed the issue. See State v. Poyner, 306 N.W.2d 716, 719-20 (Iowa 1981).
It has become well-settled law that Fifth Amendment due process and the Sixth Amendment right to a jury trial require any fact tending to enhance a defendant...
To continue reading
Request your trial