January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
LAMONT MONTEE WILLIAMS, Defendant-Appellant.
from the Iowa District Court for Story County, Timothy J.
defendant appeals his convictions, alleging ineffective
assistance of counsel, and his sentences, alleging the
district court abused its discretion. AFFIRMED.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
Williams appeals his convictions and sentences for
second-degree burglary, simple assault, assault causing
bodily injury, and child endangerment. He alleges his trial
counsel was constitutionally ineffective for failing to
object to testimony and other evidence derived from his cell
phone records. Additionally, he contends the trial court
abused its discretion by ordering the maximum fines on each
charge and imposing consecutive prison sentences. After
careful review, we affirm.
Background Facts and Proceedings.
and the complaining witness had a two-year romantic
relationship, which resulted in a child. All three resided in
the complaining witness's home. However, just prior to
the incident, Williams and the complaining witness broke up.
Williams moved out of the home but left some of his personal
effects at her home. The complaining witness eventually took
Williams some of his belongings; however, several of his
items remained at the home, including some legal documents,
his identification, his electronic benefits transfer card,
and various photos.
no longer romantically involved, Williams and the complaining
witness kept in communication with each other via text
messages and phone calls. The complaining witness indicated
she no longer wished to pursue a romantic relationship with
Williams despite his repeated sexual advances. Williams
contends the two continued a sexual relationship.
March and April 2015, Williams and the complaining witness
exchanged text messages, described as "just arguing back
and forth." The arguing apparently peaked on April 13
when the complaining witness told Williams she did not want
him anywhere near their child.
evening, the complaining witness and a friend stayed at the
complaining witness's residence, where they smoked
marijuana "to relax." Once the friend left, the
complaining witness said she took two anti-anxiety and one
antidepressant pills before going to sleep. The complaining
witness testified she awakened sometime between 11:30 p.m.
and 1:00 a.m. when Williams put his penis into her mouth. She
further stated he proceeded to have sex with her without her
consent while the child was present in the room; Williams
denied the two had sex. Following this, the complaining
witness testified Williams asked her for a ride back to Ames,
to which she agreed because she wanted him out of her home.
complaining witness testified that although Williams still
had personal belongings in her home, he was not welcome to
enter without her permission. Williams testified he went to
her home in order to retrieve his belongings. He knew the
front door did not lock properly and that he could open it.
way to Ames with the child in the backseat of her car, the
complaining witness and Williams began arguing. The
complaining witness contended the argument began when
Williams inquired into whether she was seeing other men and
bringing them around the child, to which she admitted she
was. According to her, Williams became enraged and struck her
three or four times in the face with a backhanded, closed
fist. She testified she then slammed on the vehicle's
brakes in the middle of Highway 30. Williams testified,
however, she stopped the vehicle because she dropped a
marijuana cigarette when she became angry Williams was
sending text messages to his new girlfriend. Thereafter, the
complaining witness exited the vehicle and attempted to call
911; however, she testified Williams stopped her from doing
some time, the complaining witness reentered the vehicle and
resumed driving Williams to Ames. At that point, a male
friend of the complaining witness called her phone, which
upset Williams. Williams then hit her in the face two or
three more times. Again, she tried calling 911, but Williams
apparently took her phone from her. At this point, the
complaining witness testified she again stopped the vehicle
to attempt to call 911 for a third time. She then testified
she hung up the phone because Williams told her he hid
marijuana in her car. Williams denied hitting the complaining
witness or stating that he hid drugs in her car but said she
hung up the phone because her car smelled of marijuana.
Iowa Department of Transportation had video from traffic
cameras showing a vehicle stopped in the middle of Highway 30
at approximately 1:12 a.m. Also, Ames police did receive a
"hang up" call from the complaining witness's
phone at 1:25 a.m. but had no record of any other calls from
the complaining witness's phone.
dropping Williams off, the complaining witness testified she
drove to Des Moines to see her friend. She later admitted to
having sex with the friend.
on April 14, the complaining witness went to a hospital for
examination. Hospital staff indicated she suffered a mild
concussion and multiple bruises to her face. A sexual-assault
exam was also conducted, and Williams's DNA was not
found. The only DNA found was that of the friend she visited
in Des Moines. A treating nurse practitioner testified the
complaining witness's injuries were consistent with the
account of events she gave.
State charged Williams by trial information on April 27,
2015. Williams pled not guilty and demanded a speedy trial.
10, 2015, the State filed a notice of intent to introduce
cell phone records from Verizon Wireless (Verizon). During a
pretrial hearing, following the denial of his motion to
suppress, Williams stipulated to the records' chain of
custody and foundational requirements.
case went to trial on July 21, 2015. During its case, the
State presented testimony from Iowa Division of Criminal
Investigations Special Agent Holly Witt and Nevada Police
Department Officer Ray Reynolds, who obtained Williams's
cell phone records from Verizon. Both Witt and Reynolds used
the cell phone records as a basis for their testimony, and
although the records were marked as an exhibit at trial, they
were not introduced into evidence.
Reynolds obtained the records with a search warrant, and he
noted the resulting records received from Verizon contained
"hundreds of pages of cell phone records." Officer
Reynolds indicated the records were sent to Special Agent
Witt to analyze and summarize.
Agent Witt testified she examined the cell phone records to
determine Williams's cell phone location at certain times
during the evening of the incident. She explained the records
contained round-trip delay time, evolution data optimized for
internet, small message service for text messages, and phone
call details. She explained the records had been certified as
true and accurate from Verizon and that she initially thought
the times listed in the records were in Central Standard Time
unless otherwise indicated. However, Witt apparently called
and spoke with an employee from Verizon who verified the
times were in Mountain Time.
State then introduced a summary of the information Witt
examined from the cell phone records, to which Williams did
not object. Witt testified how Williams's phone was
located in certain relevant areas, namely his house, the
complaining witness's house, and his new girlfriend's
house, all at times that corroborated the complaining
witness's account of the evening.
jury found Williams guilty of second-degree burglary, in
violation of Iowa Code sections 713.1, 713.5 (2015); two
counts of simple assault, in violation of Iowa Code sections
708.1, 708.2(6); assault causing bodily injury, in violation
of Iowa Code sections 708.1, 708.2(2); and child
endangerment, in violation of Iowa Code section 726.6(1)(a),
filed a motion for new trial and motion in arrest of judgment
on August 28, 2015; however, the court denied both. On
September 2, the court sentenced Williams to ten years'
imprisonment and a $10, 000 fine for the second-degree
burglary count, thirty days' imprisonment with credit for
time served and a $100 fine for each simple-assault count,
one year imprisonment and an $1875 fine for the
assault-causing-bodily-injury count, and two years'
imprisonment and a $6250 fine for the child endangerment
count. The court ordered all sentences to run consecutively.
appeals. We treat his case as a direct appeal as of right
except for the two simple misdemeanor assault convictions.
There is no right of appeal from a conviction for a simple
misdemeanor; any appeal must be by way of discretionary
review. See Iowa Code § 814.6. Williams did not
seek discretionary review from his convictions for assault.
The Iowa Rules of Appellate Procedure provide that if an
appeal is before the court and the wrong form of review was
sought, "the case shall not be dismissed, but shall
proceed as though the proper form of review had been
requested." Iowa R. App. P. 6.108. We treat this appeal
as including a delayed request for discretionary review of
his assault convictions.
maintains his counsel failed to object to the admission of
certain testimony and other evidence derived from cell phone
records. Specifically, he argues the testimony from Special
Agent Witt and Officer Reynolds concerning the time zones of
the phone information amounted to hearsay, the statement a
Verizon employee made to Witt about the time zones denied his
right to confrontation, and the testimony from Witt and
Reynolds was irrelevant and prejudicial because of alleged
inaccuracies. Because he asserts these claims under an
ineffective-assistance framework, we review de novo. See
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
prevail on a claim of ineffective assistance of counsel,
Williams must prove by a preponderance of the evidence (1)
his attorney failed to perform an essential duty and (2)
prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We
"look to the cumulative effect of counsel's errors
to determine whether the defendant satisfied the prejudice
prong." State v. Clay, 824 N.W.2d 488, 500
(Iowa 2012). Williams's claim will fail if either element
is lacking. See State v. Ambrose, 861 N.W.2d 550,
556 (Iowa 2015). Williams must show "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S.
668, 694 (1984). "A reasonable probability is a
probability sufficient to undermine confidence in the
ordinarily do not consider ineffective-assistance claims on
direct appeal. See State v. Taylor, 310 N.W.2d 174,
179 (Iowa 1981). While "[w]e prefer to reserve such
questions for postconviction proceedings so the
defendant's trial counsel can defend against the charge .
. . we depart from this preference in cases where the record
is adequate to evaluate the appellant's claim."
Id. (citation omitted).
claims are based upon the testimony and other evidence
derived from cell-phone-record documents not introduced into
evidence during trial. The State argues claims such as these
involving documents not in evidence are best preserved for
possible future postconviction relief proceedings, and we
agree. See State v. Decamp, 622 N.W.2d 290, 296
(Iowa 2001) (holding "[i]neffective assistance of
counsel claims presented on direct appeal are typically
preserved for postconviction relief proceedings to all for a
full development of the facts surrounding the conduct of
counsel"). Therefore, we preserve Williams's
ineffective-assistance-of-counsel claims for possible future
Williams argues the court abused its discretion by sentencing
him to serve consecutive maximum prison sentences and
imposing maximum fines. He does not, however, argue the court
abused its discretion in sentencing him to prison, nor does
he contend the court failed to give adequate reasons. He
urges us to vacate his sentence and remand for resentencing.
reviewing a district court's sentencing decisions, we
will not reverse absent either an abuse of discretion or a
defect in the sentencing procedure such as the consideration
of inappropriate matters. See State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002). "[T]he decision of the
district court to impose a particular sentence within the
statutory limits is cloaked with a strong presumption in its
favor, " and the choice of one sentencing option over
another does not necessarily constitute error. Id.
applying discretion, the court 'should weigh and consider
all pertinent matters in determining proper sentence,
including the nature of the offense, the attending
circumstances, defendant's age, character and
propensities and chances for his reform. . . . The punishment
should fit both the crime and the individual.'"
State v. August, 589 N.W.2d 740, 744 (Iowa 1999)
the district court imposed the following sentences: ten
years' imprisonment and a $10, 000 fine for second-degree
burglary; thirty days' imprisonment with credit for time
served and $100 fine for each simple assault count; one year
imprisonment and an $1875 fine for assault causing bodily
injury; and two years' imprisonment and a $6250 fine for
child endangerment. The court further ordered the sentences
run consecutively. While Williams claims the maximum
sentences are excessive, each is within the range of
punishment allowed and each is supported by adequate reasons.
the fines, we find the court did not abuse its discretion.
While it is true the fines are the maximum allowed under the
Iowa Code,  they are within the allowable range.
Williams argues the fines are excessive-a total of $18, 325
in fines when he currently owed approximately $20, 000 in
past due child support and had a continuing duty to pay child
support. He argues the fines are so sizable it effectively
guarantees he will never be able to pay them, and in ordering
them, the court abused its discretion. However, the district
court had many grounds to consider when it imposed sentence.
The court explained:
Mr. Williams, whenever the court imposes a sentence, it's
required to consider a number of factors. Included in that
are the nature of the offense, any previous criminal record
that the defendant may have, any mitigating factors which may
But basically it boils down to two things. One is a sentence
that will provide the best chance for rehabilitation for you
as a person who has violated the law; and secondly, a
sentence that will provide for the protection of the
When I review your presentence investigation and consider the
evidence presented here, a couple things jump out at me.
One is the fairly lengthy criminal record that's ongoing
over a number of years. It appears to me that you have been
given numerous opportunities to rehabilitate yourself and
those have been unsuccessful.
Next, I note the nature of the offense here. I note that both
in the presentence investigation as well as your statements
here today, you refer to this as a mistake. You do not accept
responsibility for your actions. And you blame the jury for
finding you guilty of something you claim to not have done.
In my opinion and based on what the jury said, I think the
evidence was overwhelming that you committed a criminal
offense and it was not a mistake to go into this house after
dark in the middle of the night where you had no permission
to be there and assault your former girlfriend.
So the fact that you're accepting no responsibility for
your actions is a factor which the court will consider here.
. . . .
Whenever-when I think about this, and I heard you say it that
you have got all of these children that you need to take care
of. Well, I don't-it didn't appear to me that
you're doing a very good job of taking care of them.
review, we note the district court properly considered
various factors and options when imposing punishment on
Williams. Nothing in the punishment exceeds statutory
limitations, and we find the court did not abuse its
record before us is insufficient to address Williams's
ineffective-assistance claims, and as such, we preserve those
for possible future postconviction-relief proceedings. We
also find the district court's imposition of maximum
fines and consecutive sentences was not an abuse of its
discretion. Therefore, we affirm.
 Second-degree burglary is a class C
felony, punishable by no more than ten years'
imprisonment and a fine of at least $1000 not to exceed $10,
000. See Iowa Code §§ 713.1, 713.5,
902.9(d). Simple assault is a simple misdemeanor, punishable
by no more than 30 days' imprisonment and a fine of at
least $65 not to exceed $625. See Iowa Code
§§ 708.1, 708.2(6), 903.1(a). Assault causing
bodily injury is a serious misdemeanor, punishable by no more
than one year imprisonment and a fine of at least $315 not to
exceed $1875. See Iowa Code §§ 708.1,
708.2(2), 903.1(b). Child endangerment is an aggravated
misdemeanor, punishable by no more than two years'
imprisonment and a fine of at least $625 but not to exceed
$6250. See Iowa Code §§ 726.6(7),