IN THE COURT OF APPEALS OF IOWA

No. 15-0040

Filed October 28, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

KENNETH DEAN WEAVER JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Carla T. Schemmel 

(plea and continuation of sentencing) and Robert J. Blink (sentencing), Judges.

Kenneth Weaver appeals his sentence following his guilty plea to one 

count of theft in the second degree. AFFIRMED IN PART, VACATED IN PART, 

AND REMANDED.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney 

General, John Sarcone, County Attorney, and Michael Salvner, Assistant County 

Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, Judge.

Kenneth Weaver appeals his sentence following his guilty plea to one 

count of theft in the second degree.

I. Factual and Procedural Background

On May 28 and June 5, 2014, Weaver sold photography equipment to a 

retailer in Urbandale. The description and serial numbers of the equipment 

matched those of equipment stolen in a car burglary on May 13, 2014. A police 

officer and a detective approached Weaver. Weaver agreed to speak with them. 

He admitted to selling the equipment to the retailer and admitted he knew the 

equipment was stolen. Weaver was charged with theft in the second degree in 

violation of Iowa Code section 714.1(4) (2013).1

Weaver pleaded guilty pursuant to a plea agreement. The terms of the 

agreement provided that the State would dismiss a separate charge against 

Weaver for driving while barred. Sentencing took place on December 4, 2014. 

Both Weaver and the State asked the court to sentence him according to the 

recommendations of the presentence investigation (PSI) report. The court also 

had medical reports stating Weaver was unable to work due to back pain. 

However, those reports were generated in March of 2014. During the colloquy, 

Weaver’s counsel stated Weaver agreed he would be able to perform work tasks 

that were not physically demanding. The court sentenced Weaver according to 

the PSI recommendations: a five-year term of incarceration that the court 

 

1

Iowa Code section 714.1(4) provides, “A person commits theft when the 

person . . . [e]xercises control over stolen property, knowing such property to have been 

stolen, or having reasonable cause to believe that such property has been stolen . . . .”
3

suspended, two years on probation with placement in a residential facility, a 

suspended fine, surcharges, and restitution. In its sentencing order, the court 

ordered the driving-while-barred charge dismissed and ordered Weaver to pay 

the court costs of the dismissed charge. Weaver appeals.2

II. Standard of Review

We review the district court’s sentencing order for the correction of errors 

at law. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). “We may correct an 

illegal sentence at any time.” State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). 

Otherwise, “[w]e will not vacate a sentence on appeal unless the defendant 

demonstrates an abuse of trial court discretion or a defect in the sentencing 

procedure such as the trial court’s consideration of impermissible factors.” State 

v. Lovell, 857 N.W.2d 241, 242–43 (Iowa 2014). “We review ineffectiveassistance-of-counsel claims de novo.” State v. Straw, 709 N.W.2d 128, 133 

(Iowa 2006).

III. Discussion

Weaver raises three issues through counsel and multiple additional issues 

pro se.

A. Abuse of Discretion

Weaver first asserts the district court’s sentencing decision to place him in 

a residential facility constituted an abuse of the court’s discretion. See State v. 

Evans, 672 N.W.2d 328, 331 (Iowa 2003). “An abuse of discretion is found when 

 

2 Weaver filed a pro se notice of appeal on January 9, 2015. Although the notice of 

appeal was not timely, our supreme court ordered sua sponte the appeal to proceed 

because Weaver had “exhibited a good faith effort to perfect his appeal within the 

applicable time period.”
4

the court exercises its discretion on grounds clearly untenable or to an extent 

clearly unreasonable.” Id.

Weaver concedes the district court sentenced him in accordance with the 

sentence he himself requested.3 He nevertheless argues the court was required 

to sentence him even more leniently by granting him street probation. Weaver 

argues the court abused its discretion by placing him in a residential facility and 

requiring him to obtain employment. His argument ignores the fact that the court 

ordered him to obtain employment only “to a degree [he is] reasonably able to do 

so.” Weaver himself stated to the court through counsel that he believed he 

would be able to perform work that is not physically demanding. The medical 

report from Weaver’s doctor states that, as of March 2014, he was unable to 

work; however, it also contemplates his ability to eventually rejoin the workforce. 

The court’s exercise of discretion in sentencing Weaver was not clearly 

untenable or unreasonable. The sentence in fact comported with Weaver’s 

expectations and request. We affirm the district court’s exercise of its discretion 

in sentencing.

B. Impermissible Sentencing Factor

Weaver next suggests the district court considered an impermissible factor 

in reaching its sentencing decision, requiring resentencing before a different 

 

3 The State proposes a novel application of our error preservation and waiver doctrines 

that would render Weaver’s abuse-of-discretion claim waived. The State argues Weaver 

should not be permitted to challenge a sentence he requested, citing as analogies our 

invited-error rule pertaining to evidentiary objections and probationers’ challenges to 

their own requested extensions. See State v. Mandicino, 509 N.W.2d 481, 481 (Iowa 

1993); State v. Hinkle, 229 N.W.2d 774, 750 (Iowa 1975). Though the State presents a 

colorable argument, we decline to create a new rule of law restricting defendants’ 

abilities to challenge a sentencing court’s exercise of discretion in cases such as the one 

before us now.
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judge. See Lovell, 857 N.W.2d at 242–43. Weaver argues “[t]he perception that 

[he] was a bad father to his children is not a permissible sentencing 

consideration.” He cites no controlling authority standing for this proposition. His 

sole citation is to an unreported case from this court that is factually 

distinguishable from the case before us now. See State v. Conrad, No. 12-0670, 

2013 WL 93013, at *2 (Iowa Ct. App. Jan. 9, 2013). In Conrad, we considered a 

sentencing in which one factor the district court considered was its stated goal of 

“keep[ing] [the defendant] away from that child for as long as possible.” Id. Our 

holding was not based on the court’s mention of the child but on the court’s 

attempt “‘to deliberately lengthen a sentence in an effort to interfere with parole 

practices.’” See id. (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa 

1994)); see also State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977).

It is clear the district court in this case did not make its sentencing decision 

with a mind toward separating Weaver’s children from him for as long as possible 

because it suspended Weaver’s five-year incarceration term. We are not 

persuaded that the mention of Weaver’s children amounted to the consideration 

of an impermissible factor in making a sentencing decision. We affirm the district 

court.

C. Court Costs

Weaver argues the district court erred in assigning to him the court costs 

of a dismissed criminal charge. By statute, court costs are not recoverable from 

a defendant if the charge against him is dismissed. See Iowa Code § 815.13. 

The State does not contest that the costs were erroneously assigned to Weaver. 

Instead, the State argues the issue is not properly before this court. We 
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disagree. Although the costs arose from a different cause of action with a 

different case number, they were assigned in the sentencing order for the theft 

charge. In that sense, the portion of Weaver’s sentence ordering him to pay the 

contested costs renders the sentence for the theft charge illegal.4 Weaver may 

challenge, and we may correct, an illegal sentence at any time. See State v. 

Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

We find and no party contests that the assignment of the costs of the 

driving-while-barred charge constitutes an illegal sentence. We vacate the illegal 

part of the sentencing order and remand for entry of a corrected sentencing order 

consistent with this ruling.

D. Defendant’s Pro Se Claims

Lastly, Weaver filed a pro se appellate brief that may be read to raise

several additional issues. He first suggests the district court’s sentence was the 

result of an unspecified “conflict” involving his medical records, his counsel, and 

the district court judge. He claims this conflict led to an improper sentencing 

decision. We have considered his argument in reaching our conclusion as to the 

abuse-of-discretion claim asserted by Weaver’s counsel.

 

4 We recently reached a similar conclusion in State v. Jenkins-Wells, No. 14-0432, 2015 

WL 3623642, at *1 n.1 (Iowa Ct. App. June 10, 2015). The State argues our conclusion 

in Jenkins-Wells was in error, but it cites no authority to demonstrate what error 

occurred. The State mischaracterizes our conclusion in Jenkins-Wells as a reliance on 

the rule that “an illegal sentence can be challenged at any time.” See State v. Gordon, 

732 N.W.2d 41, 43 (Iowa 2007). However, Jenkins-Wells actually involved the fact that 

the court costs for the dismissed counts were assigned in the sentencing order for the 

charges to which the defendant pleaded guilty. See Jenkins-Wells, 2015 WL 3623642, 

at *1. The State is correct insofar as there were other avenues Weaver could have 

taken to attack the assignment of these costs, but that fact does not invalidate the claim 

before us now.
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Next, Weaver appears to claim there was no factual basis to support his 

guilty plea, stating he did not steal the camera equipment and did not definitively 

know whether it was stolen property. However, Weaver did not move in arrest of 

judgment, and we find this claim is not preserved for review.5 See State v. 

Martin, 778 N.W.2d 201, 202–03 (Iowa Ct. App. 2009) (“If a defendant does not 

file a motion in arrest of judgment, the defendant is precluded from asserting 

[factual-basis] challenges on appeal.”).

Weaver goes on to assert his trial counsel was ineffective.

6

 He first claims 

counsel was ineffective in the plea negotiation process. He asserts he would 

have prevailed on the driving-while-barred charge at trial, meaning that a plea 

deal dismissing that charge was of no benefit to him. He further claims counsel

was ineffective at the plea hearing because counsel failed to raise the issue of 

Weaver’s medical troubles with the court in order to guide the court to a proper 

sentence in light of his medical limitations.

We find the record is sufficient to dispose of all asserted grounds of 

ineffective assistance. See Straw, 709 N.W.2d at 133. To establish an 

ineffective-assistance claim, Weaver must prove by a preponderance of the 

evidence both that “(1) his trial counsel failed to perform an essential duty, and 

 

5

Insofar as Weaver’s pro se brief may be read to insinuate—although it does not 

assert—counsel was ineffective for permitting Weaver to plead guilty with no factual 

basis, we find counsel had no duty to prevent him from doing so because the record is 

clear a factual basis exists. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) 

(“[C]ounsel has no duty to raise an issue that has no merit.”).

6 We consider the merits of these claims because “[i]neffective-assistance-of-counsel 

claims are not bound by traditional error-preservation rules.” See State v. Ondayog, 722 

N.W.2d 778, 784 (Iowa 2006).
8

(2) this failure resulted in prejudice.” Id. We find he cannot prove prejudice on 

his ineffective-assistance claims.

In the context of a guilty plea, “to satisfy the prejudice requirement, the 

defendant must show that there is a reasonable probability that, but for counsel’s 

errors, he . . . would not have pleaded guilty and would have insisted on going to 

trial.” Id. at 138. Weaver’s guilty plea afforded him a favorable sentencing 

recommendation from the State. The district court adopted the recommendation. 

Given this benefit along with the strength of the factual record pertaining to the 

theft charge—including Weaver’s own admissions to police—we find there is no 

reasonable probability that Weaver would have elected to go to trial.

As to counsel’s failure to mention Weaver’s medical status at the hearing, 

we find no support for the proposition that the district court’s sentence “would 

have been different” even if counsel had done so. See id. at 141 (citing 

Strickland v. Washington, 466 U.S. 668, 694 (1984)). During the colloquy, the 

court discussed the issue of Weaver’s medical condition and ability to work with 

Weaver directly. The court also had the appropriate medical reports before it 

when it reached its sentencing determination. The sentencing order accounts for 

Weaver’s medical issues by requiring him to engage in “a full-time combination of 

employment and study, to the degree reasonably able to do so.” Since the court 

expressly considered Weaver’s ability to work and ordered a sentence that 

accounts for any medically necessary restrictions, counsel’s failure to speak to 

Weaver’s medical status did not result in any prejudice.

Having also considered all other issues raised, we find Weaver is not 

entitled to relief on any of the grounds raised in his pro se brief.
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IV. Conclusion

We find the district court did not abuse its discretion or consider an 

impermissible factor in sentencing Weaver. Weaver is not able to establish his 

ineffective-assistance claims. We conclude the district court’s assignment of the 

costs of a dismissed charge to be an illegal portion of the sentence as to the theft 

charge. We vacate the illegal part of the sentencing order and remand for entry 

of a corrected order.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.