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IN THE COURT OF APPEALS OF IOWA No. 8-062 / 07-0038 Filed February 27, 2008

STATE OF IOWA, Plaintiff-Appellee, vs. MARCUS TERRILL HESTER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.

Defendant appeals his conviction and sentence for possession with intent to deliver marijuana and driving while barred. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Michael J. Walton, Acting County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.

Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.

2 BAKER, J. Marcus Hester appeals from his conviction and sentence for possession with intent to deliver marijuana and driving while barred. He contends (1) his trial counsel rendered ineffective assistance in failing to object to certain evidence, (2) the State failed to prove he was mailed a notice that he was barred from driving, and (3) the district court failed to exercise its discretion in sentencing. We reject the ineffective assistance claim because Hester failed to prove prejudice. We remand for dismissal of the driving while barred charge and for resentencing. I. Background and Facts On the evening of August 9, 2006, Davenport Police Officer Joshua Stocking encountered a vehicle driven by Marcus Hester. The vehicle did not have its rear license plate illuminated. Officer Stocking pursued the vehicle.

When Officer Stocking activated his emergency lights, Hester did not respond. When Officer Stocking activated his siren, Hester continued until he was able to turn onto a street and pull over. After pulling over, Hester immediately exited the vehicle and ran. Officer Stocking chased him for approximately a quarter of a mile until Hester fell down. The officer placed Hester in handcuffs, patted him down, and searched his pockets. He located a green digital scale in Hester's pants pocket, which fieldtested positive for cocaine. Officer Stocking also searched the area of the chase and found a clear plastic baggie containing 33.20 grams of marijuana. He

searched the vehicle and found marijuana residue on the floor and a corner of a plastic baggie between the front seats. Hester was transported to the Scott

County jail. He had a cell phone and $117.25 cash in his possession.

3 On August 21, 2006, the State charged Hester with possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d)(2005) and driving while barred in violation of section 321.561. A jury trial commenced on October 30, 2006. At trial, Officer Kevin Smull, who had been involved in the investigation, testified that he associates scales with the distribution of drugs that are sold by weight and that, under the totality of the circumstances, he associated the weight of the marijuana (approximately four grams more than an ounce) with distribution. The jury found Hester guilty of both charges. 1 On the first charge, Hester was sentenced to a term of incarceration not to exceed five years to be served consecutively to a term for a parole violation, a $1000 fine, and a revocation of his driving privileges. On the driving while barred charge, Hester was sentenced to a term of incarceration not to exceed two years concurrent with the other charge and a $625 fine. II. Merits Hester appeals, claiming (1) the State failed to prove the Iowa Department of Transportation (DOT) had mailed him a notice of barment, (2) his trial counsel provided ineffective assistance by failing to object to Officer Smull's testimony of an uncharged bad act, and (3) the district court failed to exercise its discretion when it imposed his sentence. A. Proof of Notice of Barment Hester challenges the sufficiency of the evidence that the DOT mailed him notice that he was barred from driving. He contends the State failed to prove the

1

Hester was also convicted of simple misdemeanor interference with official acts in violation of section 719.1, which is not a subject of this appeal.

4 DOT mailed the notice. Therefore, he argues, the district court should have granted his motion for judgment of acquittal on the driving while barred charge. We review sufficiency of the evidence challenges for correction of errors at law. State v. Buenaventura, 660 N.W.2d 38, 48 (Iowa 2003). It is the ultimate burden of the State to prove every fact necessary to constitute the crime with which the accused is charged. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976). Pursuant to Iowa Code section 321.561, it is unlawful for a habitual offender to operate a motor vehicle unless they have been granted a temporary restricted license. A driver's knowledge of barment is not an element of a section 321.561 offense. State v. Carmer, 465 N.W.2d 303, 304 (Iowa Ct. App. 1990). However, the recent case of State v. Green, 722 N.W.2d 650 (Iowa 2006), holds that, where the DOT is required to give notice, failure to prove the DOT mailed the notice precludes a driver's conviction for driving while suspended or barred. Proof that the DOT in fact mailed a notice of barment to the defendant may be accomplished by testimony to support its claim of mailing or an affidavit of mailing. Green, 722 N.W.2d at 652. Neither occurred here. The State concedes that notice is required and that there was no evidence of mailing, but argues that Hester waived error on this issue because his defense counsel in closing argument conceded that Hester was guilty of this charge, and that he did so as a tactical decision to deflect attention from the other charges. This concession, the State argues, is "tantamount to a confession of guilt or a guilty plea," and a guilty plea waives all defenses. Given the court's ruling on the motion for acquittal, counsel cannot be faulted for admitting liability and seeking

5 to use the lesser charge as a trial tactic. Further, Hester's trial counsel's

concession that Hester was guilty of driving while barred is not the equivalent of a guilty plea. "A plea must be voluntarily and intelligently made," and the court must comply with Iowa Rule of Criminal Procedure 2.8(2)(b). State v.

Higginbotham, 351 N.W.2d 513, 514 (Iowa 1984). Hester's counsel's closing argument concession meets neither of these requirements. The State concedes that, if the merits of this issue are reached, we should find the district court erred in not dismissing the driving while barred charge. We agree and remand for dismissal of the charge. B. Ineffective Assistance of Counsel Hester next contends his trial counsel provided ineffective assistance by failing to object to Officer Smull's testimony that traces of cocaine were found on the scale seized from Hester. Because a criminal defendant's right to reasonably effective assistance of trial counsel is derived from the Sixth Amendment of the United States Constitution, we review ineffective assistance claims de novo. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). When an ineffective assistance claim is raised on direct appeal, "the court may decide the record is adequate to decide the claim or may choose to preserve the claim for determination" under postconviction relief procedures. Iowa Code

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