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State of Iowa v. Kiko Demont Simmons

April 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
KIKO DEMONT SIMMONS, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

The opinion of the court was delivered by: Mullins, J.

Kiko Demont Simmons appeals from his guilty plea, judgment, and sentence for failure to comply with the sex offender registry and delivery of a controlled substance as a second or subsequent offender. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Considered by Doyle, P.J., and Mullins and Bower, JJ.

In this combined appeal, Kiko Demont Simmons challenges his guilty plea, judgment, and sentence in two separate cases-failure to comply with the sex offender registry and delivery of a controlled substance as a second or subsequent offender. Simmons contends counsel rendered ineffective assistance in failing to object to a defect in the plea colloquy and in failing to file a motion in arrest of judgment to ensure his guilty pleas were voluntary and intelligent. Simmons further contends his 180-year sentence constitutes cruel and unusual punishment. We affirm in part, vacate in part, and remand for resentencing with the companion case of State v. Simmons, No. 12-0567 (Iowa Ct. App. Apr. 24, 2013).

I. BACKGROUND AND PROCEEDINGS.

In July 2011, the State charged Simmons with failure to comply with the sex offender registry. Three months later, in October 2011, the State charged Simmons with delivery of a controlled substance and failure to possess a drug tax stamp. With regard to the delivery of a controlled substance charge, the State alleged Simmons was a second or subsequent offender and a habitual offender.

In December 2011, Simmons submitted a written guilty plea to failure to comply with the sex offender registry. Simmons acknowledged, "I was of sound mind when I committed the crime; I am now of sound mind and not under the influence of any drug or alcohol." Simmons asserted that "[b]etween 5/2/11 and 6/2/11 I resided in Polk County, IA. I was required to register as a sex offender and did not register my correct address with the sheriff."

In February 2012, Simmons reached a plea agreement with the State on the October 2011 drug charges. Pursuant to the agreement Simmons pleaded guilty to delivery of a controlled substance as a second or subsequent offender. In exchange the State agreed to dismiss both the habitual offender enhancement and the drug tax stamp violation. Simmons then pleaded guilty in open court. During the plea colloquy the court informed Simmons of his right to go to trial, rights pursuant to trial, and the fact that if he pleaded guilty he would be giving up those rights. The court informed Simmons that he faced up to thirty years in prison and over $150,000 in fines. The court also informed Simmons that the sentencing judge may impose a thirty-year sentence consecutive to any other sentence. To establish a factual basis for delivery of a controlled substance, Simmons admitted he "sold 7 grams of crack base cocaine to a confidential informant" in October 2011. He then admitted he had a prior controlled substance violation.

In the meantime, in a separate companion case on appeal, No. 12-0567, trial was held in January 2012 in which the State had separately charged Simmons with numerous drug-related offenses. The jury convicted Simmons on several counts. In March 2012, the district court held a combined sentencing hearing on that case and the two cases at issue in the present appeal to arrive at Simmons's 180-year sentence.

The district court sentenced Simmons to 150 years in prison for his convictions based on the jury verdict. See State v. Simmons, No. 12-0567 (Iowa Ct. App. Apr. 24, 2013). The court sentenced Simmons to thirty years in prison for delivery of a controlled substance as a second or subsequent offender on the October 2011 drug charges. The court then sentenced Simmons to two years in prison for failure to comply with the sex offender registry on the July 2011 charges. The court ordered Simmons to serve the 150-year sentence consecutive to the thirty-year sentence, but concurrent with the two-year sentence for a total of 180 years in prison. Simmons filed a timely notice of appeal.

II. SCOPE AND STANDARD OF REVIEW

Generally, we review a challenge to a guilty plea for correction of errors at law. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). But when the defendant raises the challenge in an ineffective-assistance-of-counsel context, our review is de novo. Id. If a defendant raises an ineffective-assistance-of-counsel claim on direct appeal, "we may decide the record is adequate to decide the claim or may choose to preserve the claim for post-conviction proceedings." State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006); see Iowa Code § 814.7(3) (2011). Rarely "will the trial record alone be sufficient to resolve a claim on direct appeal." Straw, 709 N.W.2d at 133. We find the record sufficient to resolve Simmons's ineffective-assistance-of-counsel claim.

A defendant may raise a constitutional challenge to a sentence for the first time on appeal. See State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). We ...


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