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State v. Bailey

Court of Appeals of Iowa

December 19, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
SAMELLA SIMONE BAILEY, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer (motion to dismiss) and David P. Odekirk (trial and sentencing), Judges.

         The defendant appeals her conviction of delivering or possessing with the intent to deliver a simulated controlled substance as a second offender.

          Eric W. Manning of Manning Law Office, PLLC, Urbandale, for appellant.

          Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.

          VAITHESWARAN, JUDGE.

         An undercover law enforcement agent contacted Samella Simone Bailey about purchasing two ounces of crack cocaine. Bailey agreed to sell the agent crack cocaine for a specified price. The two met at a predetermined location, and Bailey handed the agent a bag of suspected crack cocaine. The substance was field tested and turned out not to be crack cocaine.

         The State charged Bailey with delivery or possession with intent to deliver a simulated controlled substance (more than forty grams of simulated cocaine base) as a second offender. See Iowa Code §124.401(1)(a)(3) (2017).[1] The crime was a class "B" felony. Bailey moved to dismiss the charge on the ground the statute required an actual rather than simulated controlled substance and she should have been charged under section 124.401(1)(a)(8), which was a class "C" felony.[2] The district court denied the motion. Bailey waived her right to a jury trial, and the district court found her guilty on the minutes of testimony. The court sentenced Bailey to a prison term not exceeding twenty-five years, with a one-third mandatory minimum. On appeal, Bailey contends (1) the district court erred in denying her motion to dismiss and (2) the sentence was illegal.

         I. Motion to Dismiss

         Bailey argues the structure of chapter 124 together with its plain language required dismissal of the trial information. In her view, the chapter "generally defines the criminal activity," then "define[s] the punishments for varying aggravating circumstances," and finally, "defines the penalty for a violation of the chapter without aggravating circumstances." She asserts all the penalty provisions except one require "an actual controlled substance." She contends the single exception is section 124.401(1)(c)(8), which carries a penalty assigned "without regard to . . . the existence of an actual controlled substance."

         Bailey's argument is appealing at first blush. See Iowa Code §124.401. But it ignores key language in the provision under which she was charged:

1. Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, a simulated controlled substance, or an imitation controlled substance . . . .
a. Violation of this subsection, with respect to the following controlled substances, counterfeit substances, simulated controlled substances, or imitation controlled ...

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