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State v. O'Connor

Court of Appeals of Iowa

January 9, 2020

STATE OF IOWA, Plaintiff-Appellee,
v.
FRANKIE RAY O'CONNOR, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.

         Frankie O'Connor appeals his sentence following his guilty plea to one count of possession of more than five grams of methamphetamine with intent to deliver in violation of Iowa Code section 121.401(1)(b)(7) (2016).

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Melinda J. Nye, Assistant Appellate Defender, for appellant.

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

          Considered by Tabor, P.J., Greer, J., and Potterfield, S.J. [*]

          POTTERFIELD, SENIOR JUDGE.

         Frankie O'Connor appeals his sentence following his guilty plea to one count of possession of more than five grams of methamphetamine with intent to deliver in violation of Iowa Code section 121.401(1)(b)(7) (2016). On appeal, O'Connor argues the district court improperly considered risk assessment scores in the presentence investigation report (PSI) because the scores are not "validated" under Iowa Code Section 901.11(1) and reliance on unvalidated scores violated his rights under the Due Process Clauses of the Fifth and Fourteenth Amendment to the United States Constitution and article I, section 9 of the Iowa Constitution. He also argues his trial counsel was ineffective insofar as they failed to raise those challenges at trial. Additionally, O'Connor claims the district court erred by requiring him to pay court costs associated with the counts dismissed by the State, and requests in a pro se supplemental brief that we reduce his mandatory minimum sentence by fifty percent.

         I. Background

         O'Connor was arrested on January 30, 2017, after entering another person's residence while it was being searched by the police. Police officers searched O'Connor and discovered a bag containing three smaller bags of methamphetamine. O'Connor was initially charged with three counts: (1) conspiracy to deliver a controlled substance and (2) possession of a controlled substance with intent to deliver as a second offender, both in violation of Iowa Code section 123.301(1)(b)(7); and (3) failure to affix a tax stamp in violation of Iowa Code section 453B.12. The parties eventually agreed to a plea agreement in which O'Connor would plead guilty to count two in exchange for dismissal of counts one and three.

         At the sentencing hearing, the court addressed the PSI with counsel before sentencing O'Connor. Although neither party requested any changes or corrections, the court asked the State to address whether risk assessment information was "validated" under section 901.11:

THE COURT: I do want to ask you one question about the validated risk assessment, because that's one of the factors the Court can use to reduce the mandatory minimum as set forth in 901.11(1). So would the risk assessment that is referenced in the presentence investigative report, would they be considered the type of verified-or I'm sorry-validated risk assessment that's in the statute?
[THE STATE]: Your Honor, I think that's a good example of the legislature not being very practical in what it writes, because there's really never a validated risk assessment done in the PSI. The PSI does give the Iowa risk assessment and the mental health screen, and those sort of things. And I think in my experience, that's what the Court has relied upon as that factor that's set forth by the legislature.
THE COURT: Okay. So I don't know that the presentence investigative report refers to these as being validated, ...

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