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IN THE COURT OF APPEALS OF IOWA No. 7-642 / 06-1812 Filed September 19, 2007

STATE OF IOWA, Plaintiff-Appellee, vs. NATHAN JOHN CARROLL, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.

Nathan John Carroll appeals his conviction and sentence following his guilty plea to possession with intent to deliver. AFFIRMED.

Russell Dircks, Davenport, and Kent Simmons, Davenport, for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Amy DeVine, Assistant County Attorney, for appellee.

Considered by Huitink, P.J., and Vogel and Baker, JJ.

2 BAKER, J. Nathan Carroll appeals the conviction and sentence entered against him following his guilty plea to possession with intent to deliver in violation of Iowa Code section 124.401(5) (2005). He claims his trial counsel rendered ineffective assistance, and the district court abused its discretion by not granting him a deferred judgment. We affirm. I. Background and Facts On the night of February 26, 2006, three police officers responded to a call reporting an illegal drinking party at Cory Wulf's barn in LeClaire, Iowa. When the officers arrived, they heard loud music and knocked on the door of the barn but received no response. They encountered a couple outside, who the officers claimed invited them into the barn. Upon entering the barn, the officers observed juveniles drinking alcohol. Nathan Carroll tested 0.047 on a preliminary breath test. His parents were contacted, and he was given a citation for possession of alcohol under the legal age. During their initial search, an officer noticed the smell of marijuana and saw a cigar filled with marijuana, i.e. a blunt, on the second floor of the barn. Wulf, who was brought into the barn and told about the marijuana, claimed to know nothing about it. According to Officer Rocco Marrari's report, he asked Wulf for his consent to search the barn, to which Wulf initially responded that he did not want him to search, but that he could anyway. Marrari reportedly advised Wulf that it was up to him, and Wulf told him to go ahead and search. In addition to the blunt, a baggie and brick of marijuana and other paraphernalia were later discovered. Wulf was arrested for the marijuana.

3 The next morning, Carroll turned himself in at the LeClaire Police Department. 1 He told an officer that the marijuana belonged to him. He claimed that he and several of his friends had pooled their money to buy the marijuana, and he had gone to get it. When the police arrived, he handed the marijuana to his girlfriend and told her to place it in the location where it had been found. On July 19, 2006, Carroll was charged with possession with intent to deliver, in violation of Iowa Code sections 124.401(1)(d), 124.204(4)(m), and 703.1, and possession of drugs without a tax stamp, in violation of sections 453B.1(3)(b), 453B.7(1), 453B.12, and 703.1. On September 1, 2006, consistent with a plea agreement, Carroll pled guilty to possession with intent to deliver in violation of Iowa Code section 124.401(1)(d), and the tax stamp violation was dismissed. As part of the plea agreement, the State recommended against incarceration "recognizing the court may grant a deferred judgment." On October 5, 2006, Carroll was sentenced to a five-year term that was suspended and to a two-year term of probation. He appeals. II. Ineffective Assistance of Counsel Carroll contends his trial counsel rendered ineffective assistance by failing to file a motion to suppress evidence that was the fruit of an illegal search, by failing to challenge the sufficiency of the evidence, and by failing to adequately prepare Carroll and present the case for sentencing. A claim of ineffective

assistance of counsel requires a de novo review because the claim is derived from the Sixth Amendment of the United States Constitution. State v. Wills, 696

1

At the time of the party, Carroll was seventeen. He turned eighteen on May 5, 2006. Carroll was not charged in the matter until June 19, 2006.

4 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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