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State v. Gahagan

Court of Appeals of Iowa

June 7, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MITCHELL SCOTT GAHAGAN, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Mark R. Lawson (guilty plea) and Nancy S. Tabor (sentencing), Judges.

         Defendant appeals from his convictions and sentences, following a guilty plea, for one count of possession with intent to deliver (marijuana), one count of unlawful possession of a prescription drug (oxycodone), and one count of unlawful possession of a prescription drug (baclofen).

          Leah D. Patton of Puryear Law P.C., Davenport, for appellant.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ. Tabor, J., takes no part.

          POTTERFIELD, Judge.

         Mitchell Gahagan appeals from his convictions and sentences following a guilty plea, for one count of possession with intent to deliver (marijuana), one count of unlawful possession of a prescription drug (oxycodone), and one count of unlawful possession of a prescription drug (baclofen). Gahagan claims trial counsel was ineffective for (1) allowing him to plead guilty to possession with intent to deliver (marijuana) without a factual basis to support the charge and (2) failing to ensure he was advised of the law enforcement initiative (LEI) surcharge and the 35% surcharge involved with his two convictions for unlawful possession of a prescription drug. Additionally, he maintains the district court abused its discretion when sentencing him, claiming the court (1) considered an improper sentencing factor, namely, pending charges; and (2) wrongly refused to allow a defense witness to make a statement at the hearing.

         I. Background Facts and Proceedings.

         Gahagan was originally charged by trial information with five crimes in case FECR370741. He entered into a plea agreement with the State, whereby he would plead guilty to one count of possession with intent to deliver (marijuana), one count of unlawful possession of a prescription drug (oxycodone), and one count of unlawful possession of a prescription drug (baclofen), and the State would dismiss the other two charges.

         On December 7, 2015, the State filed a "memorandum of plea agreement." Both Gahagan and his attorney signed the document, which provided, in part, "Defendant understands that a $125.00 law enforcement initiative surcharge will be assessed for any adjudication of guilty or a deferred judgment on a violation under the following Chapters: 124, 155A, 453B, 713, 714, 715A, 716, 719 (719.8), and 725 [725(1), (2), or (3)]." (Alteration in original). The same day, Gahagan executed written guilty pleas for both charges of unlawful possession of a prescription drug. Each form contained the following statement, "I, Mitchell Gahagan, state to the Court that I am charged with unlawful possession RX drugs, code section 155A.21');">155A.21 [and] 703.1, a serious misdemeanor."

         The same day, Gahagan appeared before the court and entered a guilty plea to the charge of possession with intent to deliver (marijuana). The following exchange took place between defense counsel and Gahagan:

Q. Thank you. Mr Gahagan, on June 12, 2015, did you possess marijuana?
A. Yes.
Q. And did you know that the substance was marijuana?
A. Yes.
Q. And did you possess that marijuana with intent to share ...

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