Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.
The opinion of the court was delivered by: Potterfield, J.
Daniel Wilson appeals from his convictions and sentences for assault on a jailer and assault by an inmate. AFFIRMED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
Daniel Wilson appeals from his convictions and sentences for assault on a jailer and assault by an inmate. He contends he was provided with ineffective assistance of counsel at sentencing when his attorney allowed the court to consider a character statement from his sister attached to the presentence investigation report. He also contends in a pro se brief that there was insufficient evidence to support his conviction, among other arguments. We affirm, finding Wilson was provided with effective assistance of counsel, sufficient evidence supports Wilson's conviction, and the remaining pro se arguments are not preserved for our review.
On April 11, 2011, Wilson was serving a misdemeanor sentence in the Des Moines County jail. That day, he threw a bodily fluid he had stored in milk cartons in his jail cell at a group of correctional officers. He was charged by trial information with five counts of assault by an inmate-bodily fluids or secretions, one count for each officer. Wilson pleaded not guilty and waived his right to a speedy trial. He filed notice of defenses of self-defense, entrapment, and diminished capacity. A psychiatric examination was requested and conducted. He also filed a pro se motion for change of venue, which was denied. A jury trial took place October 4--6, 2011. The jury found Wilson guilty of three counts of "D" felony assault by an inmate (bodily fluids or secretions), and two counts of the lesser-included serious misdemeanor offenses of assault on a jailer.
Sentencing was held November 21, 2011. The court considered a presentence investigation report, which included a "character statement" from Wilson's sister. The character statement outlined Wilson's history of mental illness, substance abuse, social difficulties, and his willingness to help others. The statement also made reference to Wilson's prior act of violence against his parent. The court sentenced Wilson to consecutive terms of imprisonment of one year for each assault on a jailer, and terms not to exceed five years for each count of inmate assault. Wilson appeals from these proceedings.
"A claim of ineffective assistance of counsel is reviewed de novo. We review sufficiency-of-the-evidence claims for correction of errors at law. We will uphold a verdict if it is supported by substantial evidence." State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (internal citations omitted).
A. Ineffective Assistance
Wilson claims his trial counsel provided ineffective assistance when he failed to object to the court's consideration of his sister's narrative attached to the presentence investigation report. He contends this statement-referred to in the presentence investigation report as a "character statement"-reads instead like a victim impact statement. Therefore, he argues, because his sister was neither a victim nor an immediate family member of a victim of his actions in the jail, consideration of the statement was improper and prejudicial.
"To establish an ineffective-assistance-of-counsel claim, a defendant must prove by a preponderance of the evidence: (1) trial counsel failed to perform an essential duty, and (2) prejudice resulted." Id. "We recognize that an attorney need not be a 'crystal gazer' who can predict future changes in established rules of law in order to provide effective assistance to a criminal defendant." State v. Effler, 769 N.W.2d 880, 889 (Iowa 2009) (quoting State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1981)). The Iowa Code lists proper factors for presentence investigation, including: "The defendant's characteristics, family and financial circumstances, needs, and potentialities"; "[t]he defendant's criminal record and social history"; and "[w]hether the defendant has a history of mental health or substance abuse problems." Iowa Code § 901.3 (2011). "In exercising its [sentencing] discretion, the district court is to weigh all pertinent matters in determining a proper sentence including the nature of the offense, the attending circumstances, the defendant's age, character, and propensities or chances for reform." State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). (internal quotation marks and citation omitted).
The presentence investigation report presented to the court contains a five page attachment apparently completed by Wilson's sister, Linda. The form contains spaces for parents and siblings' names and addresses, and a final page captioned "character of defendant," which asks for strengths and weaknesses of the defendant, mental health, and substance abuse information and/or treatment. Wilson's sister provided several paragraphs titled "mental health and substance abuse," "weaknesses," "strengths," and "other." The information does not include any reference to the three counts of "D" felony assault by an inmate (bodily fluids or secretions), and two counts of the lesser-included offense of assault on a jailer. Wilson and his counsel made numerous objections and corrections to the presentence report on the sentencing record. The court stated it had reviewed "the presentence investigation and various attachments," but did not make reference to the sister's statement.
Wilson provides us with no authority to support his theory that the court considered his sister's information to be a victim impact statement. Further, the information provided in the statement included the statutory factors for a presentence report listed in Iowa Code section 901.3. Failure to object to the consideration of Wilson's sister's statement did not constitute a failure of Wilson's counsel to perform an essential duty. See ...