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State of Iowa v. Craig E. Harrison

May 15, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
CRAIG E. HARRISON, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

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

Appeal from the convictions and sentences for possession of a controlled substance with intent to deliver, drug tax stamp violation, and driving while suspended. AFFIRMED.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

Craig Harrison appeals from the convictions and sentences for possession of a controlled substance with intent to deliver, drug tax stamp violation, and driving while suspended. He contends the court erred in denying his motion to suppress and in allowing the State to withdraw the plea agreement. We affirm.

I. Background Facts and Proceedings

The evening of July 7, 2009, Officer Burkle received a call from a confidential informant, reporting a black male in a red Jeep Cherokee with license number 994RDB was "slinging dope" behind the house at 1633 Ripley Street in Davenport. Burkle and his partner, Officer Ellerbach, responded in their unmarked car. Spotting the Jeep in the alley behind 1633 Ripley, they drove down the alley past the Jeep, which had no one inside, took note of the license plate, then set up surveillance at a nearby convenience store. A few minutes later, the officers saw a black male get into the Jeep and drive away. They followed, but stayed back a block or two to avoid being seen. The Jeep stopped at the side of the street in the 1200 block of Ripley. The officers drove past, then circled back once they were out of sight. The Jeep was gone. The officers thought the driver was trying to avoid them.

After searching the area for a few minutes, the officers saw the Jeep driving north in the alley leading to 1633 Ripley. They set up surveillance again at the convenience store. Less than ten minutes later, the Jeep was seen headed east on Locust. Based on their observations and the information from the confidential informant, the officers thought the driver was leaving to make a drug delivery. As the officers tried to follow, they were impeded by traffic and eventually had to use their emergency lights to get through intersections. They caught the Jeep around the 3000 block of Locust. As they came closer, they noticed the license plate frame covered the name of the county. They pulled the Jeep over in the 3400 block of Locust.

As Harrison got out of the Jeep, he had one hand behind his back. When Officer Burkle patted him down, he felt a golf ball sized lump "between his buttocks region." They handcuffed Harrison and put him in the backseat of the squad car. After other officers arrived, Harrison was moving around in the backseat. Officer Shorten opened the door to make sure Harrison's handcuffs were not too tight and saw a small plastic bag in Harrison's hand. Shorten tried to grab the bag, but Harrison tossed it on the floorboard of the car. Four individually-wrapped rocks of what later tested as crack cocaine fell out onto the street. The bag contained fourteen more rocks of crack cocaine.

Harrison was charged by trial information with possession with intent to deliver a schedule II controlled substance, a drug tax stamp violation, and driving while suspended. Police also issued a traffic citation for "fail[ure] to maintain registration plate" in violation of Iowa Code section 321.38 (2009).

In January 2010, pursuant to a plea agreement, Harrison pleaded guilty to the possession-with-intent-to-deliver charge. The State agreed to dismiss the other charges and the traffic citation and to recommend against incarceration. The plea agreement also provided the State could withdraw any recommendations "[s]hould the Defendant have a criminal history more extensive than that revealed in the pleadings." After the court accepted Harrison's plea, it discussed the next steps: preparation of a presentence investigation, Harrison meeting with a probation officer, and the sentencing hearing. Harrison asked to withdraw his plea, stating, "I wouldn't have took this plea if I would have knew that, sir." The court allowed the withdrawal and set trial for the following Monday. About ten minutes after the hearing ended and Harrison had met with his attorney, he returned to the courtroom and asked to have his guilty plea reinstated. The court again accepted Harrison's guilty plea and deferred accepting or rejecting the plea agreement.

At the February 2010 sentencing hearing after receipt of the presentence investigation, the State "move[d] to withdraw the plea agreement," noting the criminal history attached to the trial information did not show any previous offenses, but the presentence investigation revealed Harrison had been to prison on three prior occasions. Harrison's attorney pointed the court to the April 2009 bond review hearing, where a copy of Harrison's criminal record was presented and "[p]resumably a copy of that was provided to the State at that time." The attorney asked the court to allow Harrison to withdraw his guilty plea if the court allowed the State to withdraw the plea agreement. The court confirmed with Harrison his wish to withdraw his guilty plea. The court "allow[ed] the Defendant to withdraw his plea of guilty based upon the State's review of the record and change in recommendation."

In June 2010 Harrison filed a motion to suppress, claiming the vehicle stop and the subsequent seizure and search of his person "was illegal, without a warrant, probable cause, exigent circumstances or voluntary consent." He argued there was no probable cause or reasonable suspicion to justify the pat-down search. The court denied the motion, finding "the tip from the informant, fully corroborated by the officers' observation of the person, place and vehicle, the driver's activity, and the driver's attempt to evade being followed, are sufficient objective facts to support an investigatory stop of the vehicle and driver for suspicion of possessing and selling illegal controlled substances." The court also considered the license plate violation as a basis for the stop and ruled the vehicle stop on that ground was pretextual.

Harrison failed to appear for the trial scheduled in July. He was arrested a year later in July 2011. Trial began in September 2011, and Harrison chose to remain in jail rather than attend the first day of the trial. He attended the remainder of the trial and was convicted on all counts. He filed pro se post-trial motions for judgment of acquittal, for a new trial, in arrest of judgment, and to disqualify the trial judge.

At the sentencing hearing in January 2012, the court denied all the post-trial motions. It sentenced Harrison to concurrent sentences of up to ten years on the possession with intent to deliver charge, up to five years on the drug tax stamp violation, and thirty days in jail on the ...


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