IN THE COURT OF APPEALS OF IOWA

No. 13-1203

Filed June 11, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

PABLO ELIAS-LOPEZ,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Jeffrey A. 

Neary, Judge.

Pablo Elias-Lopez appeals from his conviction and sentence for 

possession of marijuana with intent to distribute. AFFIRMED.

Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux 

City, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney 

General, Patrick Jennings, County Attorney, and Amy Klocke, Assistant County 

Attorney, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ.
2

VOGEL, P.J.

Pablo Elias-Lopez appeals from his conviction and sentence for 

possession of marijuana with intent to distribute. He asserts the district court 

erred in denying his motion to exclude a State’s witness added five days before 

trial, which he frames as an ineffective-assistance-of-counsel claim. He further 

argues the district court abused its discretion in imposing an unreasonable 

sentence. Because we conclude Elias-Lopez failed to establish prejudice with 

regard to his ineffective-assistance claim, and the court did not abuse its 

discretion with respect to its sentencing decision, we affirm.

Elias-Lopez was arrested on November 21, 2012, following a vehicle 

search that uncovered 222.9 grams of marijuana. He was charged on November 

28, 2012, with possession with intent to deliver a controlled substance as a 

habitual offender, within 1000 feet of a park, in violation of Iowa Code sections 

124.401(1)(d), 124.411, and 124.401(A) (2011), and failure to affix a tax stamp, 

in violation of Iowa Code sections 453B.12 and 902.8. A final pretrial conference 

was held on April 11, 2013, four days prior to trial, in which Elias-Lopez moved to 

exclude the State’s confidential informant from testifying because the State had 

not previously served notice or listed the confidential informant in the minutes of 

testimony.1 The court denied the motion. Elias-Lopez deposed the informant on 

the morning of April 16, the date trial was scheduled to begin.

Elias-Lopez pled guilty on April 16, 2013, to possession with intent to 

deliver as a habitual offender. Shortly thereafter, Elias-Lopez filed a motion in 

 

1 The State’s intention to call this witness resulted from the district court’s prior ruling, 

excluding as hearsay a law enforcement officer’s statement as to what he had been told 

by this witness.
3

arrest of judgment, contesting the plea as not knowing, voluntary, and intelligent. 

A hearing was held on July 17, in which Elias-Lopez withdrew his motion, and a 

sentencing hearing then proceeded. The district court sentenced Elias-Lopez to 

a term of incarceration not to exceed fifteen years. Elias-Lopez appeals.

We review ineffective-assistance-of-counsel claims de novo. State v. 

Straw, 709 N.W.2d 128, 133 (Iowa 2006). To succeed on this claim, the 

defendant must establish trial counsel breached an essential duty and he was

then prejudiced by counsel’s failure. Id. We review sentencing decisions for an 

abuse of discretion. State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

Elias-Lopez first claims the district court erred in denying his motion to 

exclude the confidential informant as a witness, and trial counsel was ineffective 

for failing to condition his guilty plea on the preservation of error with respect to 

this issue. However, counsel was able to depose the confidential informant

before the commencement of trial. Given this fact, as well as the lack of an 

assertion the outcome of the proceeding would have been different but for 

counsel’s failure, Elias-Lopez has failed to set forth an argument on which we 

could make a finding of prejudice. See Ledezma v. State, 626 N.W.2d 134, 142 

(Iowa 2001) (holding when the defendant’s claim lacks prejudice, we may 

dispose of the claim on that ground alone). Moreover, our rules of criminal 

procedure do not allow a defendant to enter a conditional plea of guilty. See

Iowa R. Crim. P. 2.8(2)(a). Therefore, counsel did not breach an essential duty 

by not conditioning Elias-Lopez’s guilty plea on a preservation of error issue, and 

Elias-Lopez’s ineffective-assistance claim fails.
4

Elias-Lopez next asserts the district court abused its discretion in ordering 

a term of incarceration as opposed to probation, for which Elias-Lopez argued at 

sentencing. He claims the court gave undue weight to his criminal history, rather 

than considering all the pertinent factors set forth in Iowa Code section 901.5. 

During the sentencing hearing, the court set forth the following reasoning 

for imposing its sentence:

I realize what you say, [defense counsel], is something that 

I’ve noticed and experienced as well as with relationships of young 

men between 18 and 25. The hard part about this case is that the 

criminal history is so significant, and I can’t ignore that because I 

have no way of telling whether Mr. Lopez has what it takes to be 

successful this time on probation. I’m going to follow the 

recommendation of the presentence report. I realize you have a 

serious usage addiction problem and it somehow, sometime has to 

get under control, and it’s—I don’t like sending someone to prison, 

especially someone as young as you. But unfortunately your 

criminal history and the recommendations and the—my belief is 

you won’t be successful on probation.

. . . .

The court has considered all of the sentencing options in this 

case and believes that the sentence it’s going to impose is going to 

provide the maximum opportunity for the rehabilitation of Mr. Lopez. 

It will protect the community from further offenses by Mr. Lopez and 

others who might be inclined to commit similar offenses. I’ve 

considered the presentence report to the extent of the parties’ 

agreement. I have considered the defendant’s comments and 

comments of counsel today. And if things were different, if we 

didn’t have such an extensive criminal history, I would clearly 

consider other options. And if I had another good option that I 

thought would work, I would clearly consider it. I do believe you’ve 

reached a point in your life, and I don’t know when that is, it’s 

different with everyone that life changes, your perspective changes 

on things and hopefully you’ve reached that point but if not, you will 

by the time you get released this point in time. But, nevertheless, 

because the defendant has pled guilty and admitted he’s a habitual 

offender, the period of incarceration from five years from the 

original sentence under Count I is now enhanced to a period of 

incarceration not to exceed . . . 15 years . . . . So no fine or 

surcharge is imposed, but the period of incarceration is imposed. It 

is not suspended.
5

The court clearly explained its reasoning in declining to suspend the term of 

incarceration, and it did not give undue weight to Elias-Lopez’s criminal history. 

Rather, it considered the appropriate factors under Iowa Code section 901.5.

See generally State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006). 

Consequently, we find no abuse of discretion in this decision. 

Having considered Elias-Lopez’s arguments, we affirm both his conviction 

and sentence.

AFFIRMED.