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State v. Pettyjohn

Court of Appeals of Iowa

August 1, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
NORA PETTYJOHN, Defendant-Appellant.

          Appeal from the Iowa District Court for Marion County, James D. Birkenholz (motion), District Associate Judge, Terry L. Wilson (bench trial), Judge, and Steven W. Guiter (sentencing), District Associate Judge.

         Nora Pettyjohn appeals her convictions for operating while intoxicated and possession of methamphetamine, second offense.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          VOGEL, JUDGE.

         Nora Pettyjohn appeals her convictions for operating while intoxicated and possession of methamphetamine, second offense. She argues the court erred in denying her motion to suppress, imposing an illegal sentence, and imposing consecutive sentences without stating the reasons for doing so. She also argues generally the evidence is insufficient to support her convictions and her counsel was ineffective for failing to file a motion to amend or enlarge the court's findings. We find the court correctly denied her motion to suppress and her sentence was not illegal but rather a procedural sentencing issue not preserved on appeal. We further find sufficient evidence supports her convictions, and her counsel was not ineffective for failing to request the trial court to amend or enlarge its findings. However, the court erred in failing to state its reasoning for consecutive sentences. Therefore, we affirm her convictions, vacate her sentences, and remand for resentencing.

         I. Background Facts and Proceedings

         On January 31, 2017, Knoxville Police Officer Kyle Eastwood saw Pettyjohn driving a car with a non-working brake light. He continued to observe her for a short time and did not notice any other violations. When she pulled into a convenience store parking lot, he initiated a traffic stop due to the faulty brake light. She exited her vehicle and waved her arms before he exited his patrol vehicle. He noticed she seemed "fidgety" and spoke rapidly. He observed her talking to herself, "frantically" looking for something, and showing a short attention span. At this point he suspected she was under the influence of something, likely an upper such as methamphetamine. He conducted field sobriety tests and noticed several clues: six out of six clues on the horizontal gaze nystagmus (HGN); three out of eight clues on the walk and turn; and one out of four clues on the leg stand. He then conducted a preliminary breath test, which showed a blood alcohol level of .001.

         During the stop, Pettyjohn claimed she was hot, even though the outdoor temperature was thirty-six degrees. She removed the Harley-Davidson jacket she was wearing and revealed a Harley-Davidson t-shirt. She refused to put the jacket back on even though she repeatedly complained of being cold. She referred to it as "my" jacket several times during the stop.

         Officer Eastwood arrested Pettyjohn for operating while under the influence. Another officer searched the jacket she had worn and found part of an ink pen with a small bag containing a crystal substance. The substance weighed two-tenths of one gram and field tested positive for methamphetamine. Pettyjohn described the pen as a "snort tube." She then denied owning the jacket or the items inside it, but she did not know the name of the person who owned the jacket. Officers searched her vehicle and found three hypodermic needles behind the driver's seat.

         Officer Eastwood transported Pettyjohn-and the jacket at her request-to jail and gave her an opportunity to provide a urine sample. She initially produced an insufficient amount of dark yellow urine. She then provided a jar of a liquid that appeared to be toilet water; the liquid was light yellow in color, the sample jar was cold to touch, and the detention officer who supervised the sample heard the jar hit the stool. Officer Eastwood then noted she had refused to provide a sample.

         On April 18, Pettyjohn filed a motion to suppress evidence from the search asserting the search exceeded the scope of the stop. During a hearing on the motion, Officer Eastwood testified he joined the Knoxville Police Department in October 2012 and he does not have training as a drug recognition expert, but as a police officer he encounters someone under the influence of methamphetamine at least once per week. The court found reasonable suspicion for the search and denied the motion. After a stipulated trial on the minutes, the court found her guilty of operating while under the influence and possession of methamphetamine, second offense. The court sentenced her to a term of incarceration of two years for possession and one year for operating while under the influence, run consecutively, with all but two days suspended; two years of probation; and fines and surcharges. Pettyjohn now appeals her convictions and sentence.

         II. ...


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