State of Iowa v. Curtis Vance Halverson ( 2014 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 13-0446
    Filed May 29, 2014
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    CURTIS VANCE HALVERSON,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Des Moines County, Michael J.
    Schilling, Judge.
    Defendant appeals his conviction for possessing contraband at a
    correctional facility. AFFIRMED.
    Thomas Hurd of Glazebrook, Moe, Johnston & Hurd, L.L.P., Des Moines,
    for appellant.
    Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
    General, Patrick C. Jackson, County Attorney, and Tyron Rogers, Assistant
    County Attorney, for appellee.
    Considered by Tabor, P.J., Bower, J., and Mahan, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
    2
    MAHAN, S.J.
    Curtis Halverson appeals his conviction for possessing contraband at a
    correctional facility. Halverson has not shown he received ineffective assistance
    due to counsel’s failure to challenge his conviction for possessing contraband on
    the ground Iowa Code section 719.7(3)(a) (2011) did not apply in this case. Also,
    he has not shown he received ineffective assistance due to defense counsel’s
    failure to raise the issue of whether the State presented sufficient evidence to
    show the facility was managed by the Iowa Department of Corrections.
    I. Background Facts & Proceedings
    On November 9, 2012, a residential officer at the Burlington Residential
    Correctional Facility smelled marijuana smoke. He established the odor was
    coming from a specific room in which only Halverson was present. The officer
    stated the odor was “really strong, as if it had just been smoked in the last
    minute, maybe.” The officer conducted a pat-down search of Halverson and
    found a cigarette lighter.      During a search of Halverson’s room another
    residential officer found a marijuana cigarette, which was still smoldering, above
    a ceiling tile directly over Halverson’s bed.
    At the time of the incident, Halverson was a resident of the correctional
    facility on a work-release program.      Halverson was charged with possessing
    contraband, a controlled substance, in an institution under the management of
    the Iowa Department of Corrections, in violation of Iowa Code section
    719.7(3)(a).   After a jury trial, Halverson was found guilty of possessing
    contraband. He was sentenced to a term of imprisonment not to exceed five
    3
    years. Halverson now appeals his conviction, claiming he received ineffective
    assistance of counsel.
    II. Standard of Review
    We review claims of ineffective assistance of counsel de novo. Ennenga
    v. State, 
    812 N.W.2d 696
    , 701 (Iowa 2012). To establish a claim of ineffective
    assistance of counsel, a defendant must show (1) the attorney failed to perform
    an essential duty and (2) prejudice resulted to the extent it denied the defendant
    a fair trial. State v. Carroll, 
    767 N.W.2d 638
    , 641 (Iowa 2009). A defendant has
    the burden to show by a preponderance of the evidence counsel was ineffective.
    See State v. McKettrick, 
    480 N.W.2d 52
    , 55 (Iowa 1992).
    III. Ineffective Assistance
    Halverson claims he received ineffective assistance because defense
    counsel did not file a motion challenging his conviction on the ground section
    719.7(3)(a) does not apply to the possession of contraband at the Burlington
    Residential Correctional Facility. Section 719.7(3) provides:
    A person commits the offense of possessing contraband if
    the person, not authorized by law, does any of the following:
    a.     Knowingly introduces contraband into, or onto, the
    grounds of a secure facility for the detention or custody of juveniles,
    detention facility, jail, correctional institution, or institution under the
    management of the department of corrections.
    (Emphasis added.)        In this case, the trial information specifically alleged
    Halverson “did knowingly possess contraband [in an institution] under the
    management of the Department of Corrections, to-wit: a controlled substance.”
    Thus, our consideration is limited to whether the Burlington Residential
    4
    Correctional Facility is an “institution under the management of the department of
    corrections.” See Iowa Code § 719.7(3)(a).
    Halverson claims the correctional facility is under the jurisdiction of the
    Eighth Judicial District Department of Correctional Services, not the Iowa
    Department of Corrections and therefore section 719.7(3)(a) does not apply in
    this case. See State v. Allen, 
    708 N.W.2d 361
    , 364 (Iowa 2006) (finding there
    was no factual basis to support a guilty plea to introducing a controlled substance
    into a detention facility when the correctional facility in question was not a
    detention facility); State v. Mitchell, 
    650 N.W.2d 619
    , 620 (Iowa 2002) (finding
    there was no factual basis to support defendant’s conviction for possessing
    contraband because the statute did not apply to the facility where defendant was
    located).1
    In a recent case, the Iowa Supreme Court stated:
    David Miller was committed to the residential correctional
    facility in Burlington in March 2011 following his release on parole
    from prison where he was serving a sentence for a felony offense.
    The facility is under the control of the Iowa Department of
    Corrections and is commonly referred to as a halfway house.
    State v. Miller, 
    841 N.W.2d 583
    , 585 (Iowa 2014). The court noted the Burlington
    facility was a community-based correctional facility. See 
    id. at 590.
    The State asserts community-based correctional facilities, such as the
    Burlington Residential Correctional Facility, are under the management of the
    Iowa Department of Corrections.       The term “management” is not defined in
    chapter 719. When a statutory term is undefined, we may consider dictionary
    1
    Section 719.7(3) was amended in 2007, and now includes jails and detention facilities
    as specific locations where contraband may not be located. 2007 Iowa Acts ch. 89, §1.
    5
    definitions to determine the meaning of the word. See Schaefer v. Putnam, 
    841 N.W.2d 68
    , 78 (Iowa 2013). One definition of “management” is “the conducting
    or supervising of something (as a business); esp.: the executive function of
    planning, organizing, coordinating, directing, controlling, and supervising any
    industrial or business project or activity with responsibility for results.” Websters
    Third New Int’l Dictionary 1372 (2002).
    The Iowa Department of Corrections “has primary responsibility for
    corrections administration, corrections institutions, prison industries, and the
    development,       funding,   and   monitoring    of   community-based       corrections
    programs.” Iowa Code § 7E.5(1)(n). Community-based correctional programs
    are governed by chapter 905.             In each judicial district, a judicial district
    department of correctional services has been created. 
    Id. § 905.2.
    The district
    departments are under the direction of a board of directors and administered by a
    director employed by the board. 
    Id. The district
    departments “shall furnish or
    contract for those services necessary to provide a community-based correctional
    program which meets the needs of that judicial district.” 
    Id. This may
    include the
    operation of a residential correctional facility. See 
    id. § 905.4(5);
    Iowa Admin.
    Code r. 201-40.1. While residential correctional facilities may be operated by a
    district department, the Iowa Department of Corrections is responsible for
    “[a]ccreditation    and   funding   of    community-based      corrections    programs
    including . . . residential facilities.” See Iowa Code § 904.103(1).
    The Iowa Department of Corrections is to provide assistance and support
    to the district departments to aid them in complying with chapter 905.               
    Id. § 905.7.
    The Iowa Department of Corrections has the authority to promulgate
    6
    administrative rules establishing guidelines for community-based correctional
    programs under chapter 905. 
    Id. The district
    department’s community-based
    correctional program must conform to the guidelines established by the Iowa
    Department of Corrections. 
    Id. § 905.6(6).
    Funding for each district department
    is through the Iowa Department of Corrections, and is conditional on review and
    approval of a district department’s community-based correctional program by the
    Iowa Department of Corrections.      
    Id. § 905.8.
       If the Iowa Department of
    Corrections determines a district department’s community-based correctional
    program is not in compliance with the guidelines, and will not be expeditiously be
    brought into compliance, the Iowa Department of Corrections “may assume
    responsibility for administration of the district’s community-based correctional
    program on an interim basis.” 
    Id. § 905.9.
    We conclude the Burlington Residential Correctional Facility, as a
    community-based correctional program, is under the management of the Iowa
    Department of Corrections. The Iowa Department of Corrections is engaged in
    directing, controlling, and supervising community-based correctional programs
    operated by district departments. See Websters Third New Int’l Dictionary 1372
    (2002) (defining “management”). Therefore, Halverson did not receive ineffective
    assistance due to counsel’s failure to challenge his conviction for possessing
    contraband on the ground section 719.7(3)(a) did not apply in this case.
    Halverson also argues that even if section 719.7(3)(a) is applicable, he
    received ineffective assistance because defense counsel did not raise the issue
    that the State failed to present evidence in his case to show the Burlington
    Residential Correctional Facility was an institution under the management of the
    7
    Iowa Department of Corrections. He contends that if defense counsel had raised
    a motion on this ground it would have been successful.
    During the criminal trial, Ted Gutman, the manager of the Burlington
    Residential Correctional Facility, was asked,
    Q. Is your facility, is that an institution or facility that’s under
    the management of the Department of Corrections? A. We
    function under the policies of the Department of Corrections.
    Gutman also stated he had worked at the facility and with the Iowa Department
    of Corrections for the same number of years. He stated the facility came under
    the intermediate sanctions code, which is chapter 901B, as a step between
    imprisonment and supervised probation.2 Grant Hummer, a residential officer,
    testified he received training through the Iowa Department of Corrections, where
    he was informed “what our job duties were and how to conduct them.”
    We conclude the State presented sufficient evidence to show the
    Burlington Residential Correctional Facility was managed by the Iowa
    Department of Corrections. Halverson has not shown he received ineffective
    assistance due to defense counsel’s failure to raise this issue.
    On May 16, 2014, Halverson filed a pro se brief in this case. An untimely
    pro se suppremental brief “will not be considered by the court and no response
    by the State will be allowed.” Iowa R. App. P. 6.901(2)(a). Halverson’s pro se
    brief is untimely and we will not consider it.3
    2
    District departments are required to implement an intermediate criminal sanctions
    program based on a plan which is subject to rules adopted by the Iowa Department of
    Corrections. Iowa Code § 901B.1(3).
    3
    A pro se supplemental brief must be filed within fifteen after the date counsel’s proof
    brief is filed. Iowa R. App. P. 6.901(2)(a). The proof brief here was served on
    September 20, 2013, making the pro se supplemental brief filed on May 16, 2014,
    untimely.
    8
    We affirm defendant’s conviction for possessing contraband.
    AFFIRMED.
    

Document Info

Docket Number: 13-0446

Filed Date: 5/29/2014

Precedential Status: Precedential

Modified Date: 10/30/2014