Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.
The opinion of the court was delivered by: Potterfield, P.J.
Nicole Wentland appeals from the sentence imposed upon her conviction for conspiracy to commit forgery, as well as a condition of probation. AFFIRMED.
Heard by Potterfield, P.J., and Danilson and Tabor, JJ.
Nicole Nerissa Wentland appeals from the sentence imposed upon her conviction for conspiracy to commit forgery. She contends the earlier deferred judgments she received upon her pleas of guilty to forgery and conspiracy to commit forgery should have merged. She also contends her constitutional right to free association was violated by an improper condition of probation, and her right to counsel was violated when the court did not appoint counsel to represent her at the hearing on her motion to modify the conditions of her probation.
I. Background Facts and Proceedings.
On February 25, 2009, the State charged Nicole Wentland with forgery to obtain a prescription controlled substance (a class "C" felony), and three misdemeanor theft offenses.*fn1 With respect to the charge of forgery to obtain a prescription controlled substance, the minutes of testimony indicate that on March 10, 2008, Wentland took a prescription pad from a doctor's office; she and another discussed using the prescription pad to obtain the controlled substance, Oxycodone; Wentland wrote out a prescription and the other person signed a doctor's name to the document; Wentland submitted the forged prescription to at least two separate pharmacies, one in Winterset, Iowa, and one in West Des Moines, Iowa; and Wentland obtained the controlled substance from the pharmacy in West Des Moines.
On June 23, 2009, the State amended the trial information without resistance. Count 1A charged:
Forgery, a Class D Felony, in violation of Iowa Code sections 715A.1 and 715A.2(1) [2011*fn2 ]; The said Defendant on or about the 10th day of March, 2008 in West Des Moines, Dallas County, Iowa did, with the intent to defraud or injure someone, or with knowledge that person was facilitating a fraud or injury did make, complete, execute, authenticate, issue or transfer a writing so that it purports to be the act of another who did not authorize that act.
Conspiracy to commit Forgery, a Class D Felony, in violation of Iowa Code sections 706.1 and 706.3; The Defendant on or about the 10th day of March, 2008, in West Des Moines, Dallas County, Iowa, did with the intent to promote or facilitate the commission of a felony agree with another that they or one of them would engage in conduct constituting the crime.
Wentland pleaded guilty to counts 1A and 1B that same date pursuant to a plea agreement in which the misdemeanor theft charges would be dismissed. When asked to state in her own words what happened, Wentland reported that on March 10, in Dallas County:
Okay, it was just a couple days before that I had had a doctor's appointment and I stole a prescription pad from my doctor. And I was using drugs at this time, which I'm eight months over now. I took the prescription pad and told one of my friends, which is not my friend that I had been getting pills from at that time, and we talked about it and said okay we are going to write out a prescription and go get it filled, so I wrote the prescription and signed it. I walked into Hy-Vee and I presented it to them, and it looked fine to them, and I got it partially filled, not completely filled, and paid in cash, no insurance, and walked out with the prescription.
He was actually with me at the time and we talked about who was going to do it, and decided that it was going to be me, I guess, I was the dumber one.
Wentland requested that the court proceed to immediate sentencing. The court accepted the pleas and granted Wentland's request to defer judgment on both counts. The court asked if defense counsel had explained "[t]hese are the two [deferred judgments] you get for your lifetime." Wentland stated, "Yes, I understand that. I'll not need any more." The district court entered orders deferring judgments on Counts 1A and 1B and imposed two-year terms of probation.
Allegations of probation violations*fn3 were filed on October 25, 2010, and on November 18, the district court found Wentland in contempt and sentenced her to serve thirty days in jail.
Another report of a probation violation was filed on April 7, 2011, asserting that Wentland had failed to participate in substance abuse treatment as required. On June 23, a doctor's excuse was filed with the court stating, "Nicole was unable to attend court this AM and will be unable to attend 6-24-11 due to labor contractions."
On July 21, an addendum to the April report of a probation violation was filed indicating Wentland had been discharged unsatisfactorily from substance abuse treatment due to non-compliance. The probation officer wrote, "Although the defendant had told the treatment provider that she was excused due to pregnancy complications, the defendant never provided documentation, as requested, to the treatment provider." The probation officer recommended the revocation of the deferred judgments.
On August 5, 2011, a probation revocation hearing was held. The prosecutor stated at the beginning of the hearing that the parties engaged in "extensive conversation with the court in chambers." The prosecutor reported that following discussion, "the defendant would stipulate to the violations that have been reported with respect to her substance abuse treatment and lack of follow through." She continued:
. . . It's my understanding that Ms. Wentland would be found in contempt for the Count 1A, the forgery, on which she received a deferred judgment. That she would serve 30 days in the county jail for the contempt of court; that her jail term would be served in three increments of ten days a piece, and that the file would be closed upon completion, that she would be on a payment plan with the county attorney's office for those obligations.
With respect to Count 1B as requested by the State, the court would be willing to consider revocation of the deferred judgment and impose a judgment at this time, that being to sentence the defendant to an indeterminate period of five years with the Department of Corrections; however, suspend that and continue the defendant on probation for a period of one year with the Department of Corrections.
[The probation officer] offered suggestions to the court with respect to some downfalls with probation and some slipups that apparently she had witnessed with respect to Ms. Wentland, and felt that the influence of her significant other was an important issue that has caused Ms. Wentland to not successfully complete her probation. So with respect to this conviction now on Count 1B the parties understand the court is ordering now the fine of $750, plus surcharge and court costs. I would ask that any payments that have been made towards a civil penalty could now be applied to the fine.
That she be ordered to follow through with recommendations of a substance abuse evaluation gotten recently by Ms. Wentland through A-1 Addictions; that she completely abstain from any consumption of alcoholic beverages; that also she sign releases; that also she sign releases of information of care providers to the probation officer for substance abuse and mental health treatment.
Also we ask that the court order that she obtain a mental health evaluation and obtain those until maximum benefits are achieved.
I understand that the court is also making a term of probation that the defendant shall not have contact with Michael Croft, and any child care arrangements shall be made by a third party. We all understand that Ms. Wetland's new born child is fathered by Mr. ...