IN THE COURT OF APPEALS OF IOWA

No. 15-0169

Filed November 12, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

NICHOLAS C. MIGLIO,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates 

(plea) and Annette J. Scieszinski (sentencing), Judges. 

A defendant who pleaded guilty to a drug felony appeals the district court’s 

denial of his request for a deferred judgment. SENTENCE VACATED AND

REMANDED FOR RESENTENCING.

Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn, Boles, 

Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall, 

Assistant Attorneys General, for appellee.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2

TABOR, Judge.

Nicholas Miglio contends the sentencing court abused its discretion in 

denying his request for a deferred judgment. Miglio also argues his counsel was 

ineffective by not objecting to misinformation in the presentence investigation 

(PSI) report that he failed to follow through with recommendations required by 

Iowa Code section 811.2(1)(b) (2013). Because we agree counsel’s omission 

allowed the sentencing court to rely on a faulty finding in the PSI report, we 

remand for resentencing. We do not address the question whether the court 

abused its discretion.

I. Background Facts and Proceedings

When he was arrested for possessing marijuana with intent to deliver

during a traffic stop on Interstate 80, Nicholas Miglio was nineteen years old and 

in his second year at St. Ambrose University in Davenport. He had a double 

major in finance and philosophy and a minor in economics. Miglio grew up in 

Chicago and returned to his family’s home during breaks from college. After his 

April 22, 2014 arrest, Miglio was released on his own recognizance without bond 

or court services. 

The State charged Miglio in a three-count trial information with (1) failure 

to affix a drug tax stamp, a class “D” felony in violation of Iowa Code sections 

453B.1, 453B.3, and 453B.12; (2) possession with intent to deliver marijuana, a 

class “D” felony, in violation of section 124.401(1)(d); and (3) unlawfully keeping 

a premises for drugs, an aggravated misdemeanor in violation of section 

124.402(1)(e). On September 15, 2014, Miglio pleaded guilty to count two,
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possession with intent to deliver marijuana. Miglio admitted at the plea hearing 

that he possessed less than fifty kilograms of marijuana and intended to “not sell, 

but share it” with someone else. As part of the plea agreement, Miglio could 

request a deferred judgment and the State would take no position at sentencing.1

Before sentencing, Miglio met with the PSI author, who recorded the 

following comment under his Arrest History: 

[T]he defendant reported during the presentence interview 

conducted on December 1, 2014, that he had no prior criminal 

record including deferred judgments and that he had never been 

placed on adult probation or parole; however an NCIC Criminal 

Records Response reflects that he received a prior deferred on 

December 19, 2013 and that he was placed on Court supervised 

probation for six months and was on probation to Warren County, 

Illinois Court Services when he was charged with the instant and 

pending offense. Information received from the Warren County 

State’s Attorney’s Office reports that they did not file a probation 

violation complaint against the defendant because they were not 

aware of the new offense. They report that he has paid the fine in 

full and that the probation has expired in June of 2014.

The PSI report listed his prior Illinois misdemeanor offense as possession of 

cannabis on November 16, 2013. The disposition was to withhold judgment with 

six months supervision and a fine of $815.

Also in the PSI report, under Offender Intervention Comments, the 

following information appeared:

The defendant reportedly obtained a substance abuse 

evaluation following his release in this matter while on break from 

school in Chicago, Illinois . . . . Information received from the 

defendant’s mother indicates that the evaluation was conducted by 

Presence Behavioral Health. [The PSI attached a copy of the 

evaluation results.]

 

1 Miglio was eligible for a deferred judgment under Iowa Code sections 901.5(1) and 

907.3.
4

It should be noted that the licensed addiction counselor 

recommended that Mr. Miglio “have random drug screens and 

attend counseling when he returns to school”; however the 

defendant failed to follow through with the recommendation even 

though it is required as a condition of his release pursuant to 

Section 811.2(1)(b) of the Code of Iowa. 

The PSI author further shared a report from Miglio’s mother explaining it was 

difficult for Miglio to follow up with the recommended treatment in Davenport 

because he did not have a vehicle at college, but that he did see a clinical 

psychologist when he returned home to Chicago. The PSI author responded by 

noting the availability of substance abuse treatment within walking distance from 

Miglio’s residence in Davenport. The author also wrote that the psychologist in 

Chicago did not appear from his website “to provide any form of substance abuse 

services.”

In making his sentencing recommendation, the PSI author again repeated 

that Miglio was “statutorily required” to follow through with the recommendations 

for random drug screens and counseling. The PSI author stated: 

Mr. Miglio claims that he did not follow through with the 

recommended treatment because he felt that the drug program had 

a “cookie cutter” feel and “lacked a sense of specificity” to his 

personal needs. Mr. Miglio further expressed that he sees a 

licensed clinical psychologist for treatment of ADD and ADHD and 

he felt that his appointments with Dr. Gordon allow him the feeling 

of “individuality.” While it is encouraging that the defendant 

continues to see his psychologist; it should not take the place of 

receiving substance abuse treatment through a certified addictions 

counselor while maintain the credibility of treatment through 

random drug screening.

The PSI report ultimately recommended Miglio receive a suspended

sentence and be placed on probation.
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Miglio appeared for sentencing on January 12, 2015. At the hearing, 

defense counsel pointed to several incorrect statements in the PSI. Specifically, 

counsel noted the drug treatment provider was not within walking distance from 

Miglio’s residence, but “that he does have a scheduled appointment for an 

evaluation with the same organization” at a different facility. Counsel also noted 

Dr. Gordon was not treating Miglio for ADD and ADHD; “his primary care 

physician treats him for those two conditions.” Counsel offered as an exhibit a 

letter from Dr. Gordon, discussing his treatment of Miglio for “intense anxiety” 

and Miglio’s past practice of using marijuana to “self-medicate.” Dr. Gordon 

further stated in the letter that Miglio was “absolutely committed to a program of 

sobriety.” The defense also offered exhibits showing two negative drug screens 

conducted on November 26, 2014, and January 8, 2015, at a Chicago-area 

testing center.

Defense counsel did not object to statements in the PSI report that Miglio 

violated his pretrial-release conditions under section 811.2(1)(b).

Defense counsel told the sentencing court, on the issue of his Illinois 

possession-of-marijuana offense, that Miglio appeared in court without counsel, 

did not know he was on probation, and did not know “what a deferred judgment 

meant.” 

Defense counsel asked for a deferred judgment for Miglio. Counsel 

stated: “I think it’s taken him some time to understand that he just simply can’t 

use marijuana. And I think he understands that now.” Counsel noted his client’s 
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double major at St. Ambrose and expressed that “a felony conviction would pretty 

much derail any plans that he has subsequent to his college education.” 

The sentencing court told the parties it had “carefully read the presentence 

investigation report” and asked Miglio about his “decision not to seek the 

treatment that was recommended” after his substance-abuse evaluation. Miglio 

responded that he did seek further counseling, though not with a licensed drug 

abuse counselor and was participating in drug screens. 

In rejecting Miglio’s request for a deferred judgment, the court stated: 

[I]t’s a surprise in this case to see that you really didn’t take 

ownership in this case. And there are a number of instances 

outlined in the presentence report that indicate that you really 

believe that you know things better than the folks that are making 

the requirements. I think you even indicated here on the record 

today that you didn’t get the follow up to the substance evaluation 

because you believed that something different was the way to go.

The court continued:

It’s crucial that a person seeking to defer conviction takes 

ownership for what they’ve done, they take ownership for the 

conditions and the problems they need to wrestle with to become 

rehabilitated, and that they are honest with the Correctional 

Services people, you know there an issue about that in this case.

The court entered judgment on Miglio’s felony conviction, suspended his 

indeterminate five-year sentence, and placed him on probation for five years. 

Miglio challenges that judgment and sentence on appeal. 

II. Scope and Standards of Review

We review de novo Miglio’s claim that he received ineffective assistance 

of counsel at the sentencing hearing. Id. We will resolve such claims on direct 

appeal where the record is adequate to do so. See State v. Clay, 824 N.W.2d 
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488, 494 (Iowa 2012). To prevail on his claim of ineffective assistance, Miglio 

must show counsel failed to perform an essential duty and prejudice resulted. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). In deciding whether 

counsel failed to perform an essential duty, we measure counsel’s performance 

“objectively by determining whether [it] was reasonable, under prevailing 

professional norms, considering all the circumstances.” State v. Lyman, 776 

N.W.2d 865, 878 (Iowa 2010). In deciding whether the breach of duty resulted in 

prejudice, we looks to see if the defendant can show by a reasonable probability 

that, but for the counsel’s unprofessional error, the result of the sentencing 

proceeding would have been different. State v. Hopkins, 860 N.W.2d 550, 557

(Iowa 2015).

III. Analysis

Miglio contends counsel was ineffective in failing to specifically object to 

the PSI’s “false finding” that Miglio violated conditions of his pretrial release 

under section 811.2(1)(b). 

In sentencing a defendant, the district court must receive and examine “all 

pertinent information, including the presentence investigation report” in deciding 

on the sentencing option that will “provide maximum opportunity for the 

rehabilitation of the defendant, and for the protection of the community from 

further offenses by the defendant and others.” Iowa Code § 901.5. The PSI 

report’s primary function is to provide pertinent information to assist the district 

court in reaching a sentencing decision. State v. Grandberry, 619 N.W.2d 399, 

402 (Iowa 2000). When the district court orders a PSI report, the investigator is 
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required to include the defendant’s characteristics, family and financial 

circumstances, needs, and potentialities, criminal record, social history, 

circumstances of the offense, the harm to the victim and community, and 

mitigating circumstances. Iowa Code § 901.3. “The PSI report not only includes 

relevant information concerning sentencing, but a sentencing recommendation.” 

Hopkins, 860 N.W.2d at 556–57. Although the court is not bound to follow the 

sentencing recommendation reached by an officer of the department of 

correctional services, the PSI report’s recommendation is a factor that could 

influence the sentencing decision. Id. at 557.

In choosing an appropriate sentence, the district court is free to consider 

portions of a PSI not challenged by the defendant. See State v. Witham, 583 

N.W.2d 677, 678 (Iowa 1998). Where the record shows the district court knew of 

inaccuracies in the PSI report and did not rely on them, appellate courts have 

found no basis for vacating the sentence. See, e.g., State v. Swartz, 601 N.W.2d 

348, 354 (Iowa 1999); State v. Peters, 525 N.W.2d 854, 860 (Iowa 1994). As 

discussed below, nothing in the record suggests the court sentencing Miglio was 

aware of the PSI report’s inaccuracy regarding section 811.2(1)(b). 

In this case, defense counsel challenged portions of the PSI report, but did 

not object to repeated allegations in the report that Miglio violated conditions of 

his pretrial release under Iowa Code section 811.2(1)(b), which provides:

Any bailable defendant who is charged with unlawful possession, 

manufacture, delivery, or distribution of a controlled substance or 

other drug under chapter 124 and is ordered released shall be 

required, as a condition of that release, to submit to a substance 

abuse evaluation and follow any recommendations proposed in the 

evaluation for appropriate substance abuse treatment.
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The State concedes on appeal that when Miglio was released April 22 on

his own recognizance, he was not ordered to comply with section 811.2(1)(b),

and instead he voluntarily obtained a substance abuse evaluation.

2

 See Iowa 

Code § 804.21(4). Miglio completed that voluntary assessment on May 28, 

2014, with clinician John Houlihan at Presence Health in Chicago. Houlihan’s 

report—which was an attachment to the PSI—noted Miglio “completed an 8 hour 

course of education and brief counseling and did well; showing a good grasp of 

the principles of addiction and negative consequences of drug and alcohol use.” 

Houlihan recommended Miglio have “random urine drug screens and attend 

counseling when he returns to school.” The PSI report stated Miglio “failed to 

follow through with this recommendation even though it is required as a condition 

of his release pursuant to Section 811.2(1)(b) of the Iowa Code.” The PSI report 

repeated the allegation of a statutory violation in its sentencing recommendation. 

Given the circumstances of Miglio’s release and the State’s concession he 

was not informed that a substance-abuse evaluation was a condition of his 

release, we find counsel breached an essential duty by not challenging the PSI 

report’s references to section 811.2(1)(b). The State argues it was “highly 

relevant” to the sentencing court’s decision that Miglio elected to see his 

psychologist in Chicago rather than follow Houlihan’s recommendation that he 

attend drug counseling at college. While it may be relevant that a defendant 

 

2 We do not suggest that it was proper to release Miglio without the condition that he 

submit to a substance-abuse evaluation under section 811.2(1)(b), but rather we find 

that it is necessary to inform a defendant of the conditions of release if penalties are to 

be applied to a violation of the condition. See Iowa Code § 811.2(5).
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does not follow the recommendations from a voluntary assessment, in this case 

the sentencing court was wrongly informed by the PSI report that Miglio violated 

conditions of his release by not following the recommendations of a “statutorily 

required” evaluation. 

We next turn to the question of prejudice. Generally, in sentencing cases,

we are reluctant to speculate about the weight that a trial court “mentally 

assigned” to an impermissible factor, or whether it tipped the scales toward a 

harsher sentence. See State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981)

(remanding for resentencing without consideration of improper factors). We 

know in this case, after reviewing the PSI report, the sentencing court observed 

that Miglio had not taken “ownership” of his case and further noted “a number of 

instances outlined in the presentence report that indicate that you really believe 

that you know things better than the folks that are making the requirements.” 

The court’s reference to “requirements” rather than to “recommendations” signals 

it was relying on an improper factor, i.e., the PSI report’s finding Miglio violated 

the conditions of his release under section 811.2(1)(b). 

If defense counsel had lodged an objection to the inaccurate statements in 

the PSI report indicating Miglio had violated pretrial-release conditions, a 

reasonable probability exists the district court would have more seriously 

considered granting his request for a deferred judgment. The prejudice from 

counsel’s omission reflects in the court’s reasoning that it was “crucial that a 

person seeking to defer conviction takes ownership for what they’ve done” and 

“ownership for the conditions and the problems they need to wrestle with to 
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become rehabilitated.” It is much more likely the court would have believed 

Miglio was taking responsibility for his drug offense if the PSI report had been 

clarified to show Miglio had voluntarily sought out the substance-abuse 

assessment, even if he did not strictly follow the clinician’s recommendations for 

follow-up treatment. We conclude Miglio was prejudiced by his counsel’s 

omission. 

Having determined trial counsel provided ineffective assistance at 

sentencing, we vacate the judgment and sentence. We decline Miglio’s invitation 

to grant a deferred judgment on appeal and instead remand for resentencing 

where that option is available to the sentencing court. On remand, we direct the 

PSI report be updated to remedy the issues addressed in this decision. See 

State v. Polk, No. 04-0570, 2005 WL 2805550, at *2 n.2 (Iowa Ct. App. Aug. 31, 

2005).

SENTENCE VACATED AND REMANDED FOR RESENTENCING.