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State v. Merchant

Court of Appeals of Iowa

August 16, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JUSTIN EUGENE MERCHANT, Defendant-Appellant.

         Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon, Judge.

         The defendant appeals his conviction and the resulting sentencing for delivery of a controlled substance (methamphetamine). AFFIRMED.

          Julie R. De Vries of De Vries Law Office, P.L.C., Centerville, for appellant.

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

          Considered by Vaitheswaran, P.J., Bower, J., and Blane, S.J. [*]

          BLANE, Senior Judge.

         Justin Merchant appeals his conviction and the resulting sentence for delivery of a controlled substance (methamphetamine), in violation of Iowa Code section 124.401(1)(c)(6) (2015). Merchant maintains the district court improperly considered a new charge when sentencing him, his right to due process was violated when a charge he was not aware of was considered, and he received ineffective assistance from his attorneys throughout the case.

         I. Background Facts and Proceedings.

         After reaching a plea agreement with the State, Merchant pled guilty to delivery of a controlled substance (methamphetamine) on February 22, 2016. Pursuant to the agreement, Merchant would be immediately released from custody under pretrial supervision until sentencing, and at sentencing the State was to "recommend [a] suspended sentence with five years' probation." Additionally, the written agreement stated, "While on supervision the defendant shall not incur any new criminal charges. In the event new charges are incurred while on supervised release, the State may withdraw its recommendation for suspended sentence and request defendant be sentenced to prison."

         On April 15, Merchant's probation officer filed a "pre-trial report of violation, " claiming Merchant had missed a scheduled appointment, had been arrested for disorderly conduct, and had admitted using methamphetamine. As a result of the report, the court revoked Merchant's pretrial release, and he was again placed in custody.

         Merchant filed an application for a bond review hearing. The hearing took place on May 9, and Merchant attended with this attorney. Merchant maintained he should be released from custody again, arguing that because the plea agreement was for probation, there was no reason not to release him prior to sentencing. The State responded:

Your Honor, a little caveat to that plea agreement. The plea agreement is for probation as long as Mr. Merchant didn't pick up any pretrial release violations of charges. He has been charged with disorderly [conduct]. While it's a simple misdemeanor, that's a violation of the agreement, and therefore, I'm not bound to make the recommendation for probation at sentencing which is scheduled for next week.

         The court asked the State if it knew what it intended to recommend at sentencing, and the State responded that it wanted to review the presentence investigation (PSI) report before reaching that decision. The court ultimately ruled to again release Merchant under pretrial supervision but warned him, "I hope it goes without saying that if you have issues between now and when you're sentenced, it's not going to look real good for you."

         Merchant then failed to appear for sentencing on May 16, and a warrant was issued for his arrest. Merchant also failed to appear for the rescheduled sentencing date of May 31. Sometime after May 31, Merchant was arrested and taken into custody. Sentencing for his ...


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