from the Iowa District Court for Wapello County, Lucy J.
defendant appeals his conviction and the resulting sentencing
for delivery of a controlled substance (methamphetamine).
R. De Vries of De Vries Law Office, P.L.C., Centerville, for
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Bower, J., and Blane, S.J.
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.
Background Facts and Proceedings.
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."
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.
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.
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."
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 ...