Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0124
                            Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ZACHARY DAVID SAXTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      Zachary Saxton appeals from his conviction of possession of a controlled

substance, marijuana, third offense following a bench trial on the minutes of

testimony. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Stephen H. Holmes, County Attorney, and Timothy Meals, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., Potterfield, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.

      Zachary Saxton appeals from his conviction of possession of a controlled

substance, marijuana, third offense following a bench trial on the minutes of

testimony.

   I. Factual Background

      On October 17, 2013, at approximately 11:30 a.m., Officer Morton and

Sergeant Baker of the Ames Police Department were dispatched to a parking lot

where two individuals were loitering near a hotel dumpster. The two individuals

identified themselves as Zachary Saxton and Katherine Johnson. They indicated

they were waiting for a ride. The officer began checking if either had outstanding

warrants.    Saxton became nervous and asked if he could leave his black

backpack and use the restroom at the hotel. The officer denied the request and

soon determined there was an outstanding warrant for Saxton. Johnson’s eyes

appeared constricted, and she was quiet and not engaged. She initially denied

she had been doing drugs. Saxton opened his backpack a couple times and

removed a bottle of water.

      Officer Morton began to handcuff Saxton, and he was initially cooperative

but then pulled away and began to run.         Baker chased after Saxton and

eventually tackled him, and with Morton’s help, Saxton was handcuffed and

taken back to the patrol car where Johnson had remained. Saxton asked if

Johnson could take his backpack, and the officer refused the request. Johnson

was questioned further, and it was determined she had a pipe with marijuana

residue. She admitted they had smoked marijuana the night before. She was

asked if Saxton was her supplier, but she did not answer directly instead replying
                                          3


she was trying to get away from him and he was always getting her involved in

bad things. She also told the officer she was presently in treatment. Saxton’s

backpack was searched, and a tin containing a butt of marijuana was found.

Saxton and his backpack were taken to the police station, and more marijuana

was found in the backpack.

      Saxton filed a motion to suppress the evidence found in the backpack.

The motion was overruled. Saxton waived his right to a jury trial and submitted

to a bench trial on the minutes of testimony. Two prior convictions of possession

of a controlled substance were established, and Saxton was found guilty of third

offense possession of a controlled substance and was sentenced accordingly.

The sentence included an order requiring Saxton to reimburse his attorney fees.

Saxton has appealed, claiming the motion to suppress the evidence found in the

backpack should have been granted, there was insufficient evidence to support

Saxton’s possession of a controlled substance, it was error to assess Saxton’s

attorney fees without consideration of his ability to pay them, and Saxton was

denied effective assistance of counsel.

   II. Preservation of Error

      The State concedes that error has been preserved as to each issue

Saxton has raised.

   III. Scope of Review and Merits as to Each Issue

      A. The Search of the Backpack

      Warrantless searches raise constitutional issues, and therefore the review

on appeal is de novo. State v. Vance,
790 N.W.2d 775, 780
 (Iowa 2010). The

officers had placed Saxton under arrest based on an outstanding warrant. A
                                         4


search without a valid search warrant is per se unreasonable, but a search

incident to a lawful arrest is an exception to the warrant requirement. State v.

Naujoks,
637 N.W.2d 101, 107
 (Iowa 2001).         A search incident to arrest is

justified in order to remove weapons and to secure evidence from concealment

or destruction. State v. Christopher,
757 N.W.2d 247, 249
 (Iowa 2008). The

area of the search includes the arrestee’s person and the area within his or her

immediate control. State v. Freeman,
705 N.W.2d 293, 298
 (Iowa 2005).

       Even though the arrestee is handcuffed a search of the immediate area

may be conducted.       State v. Shane,
255 N.W.2d 324, 327-28
 (Iowa 1977).

“[T]he police may see to the safe custody and security of suspects first and then

make the limited search which the circumstances of the particular case permit.”
Id. at 328
.    When Saxton was initially arrested, the backpack was in his

immediate possession. The fact that he ran and was not subdued until he had

put a distance between his person and the backpack is not material as long as

the search was contemporaneous with the arrest.
Id.
 It was within his wingspan

at the time of the arrest.

       Saxton requested the backpack be left with Johnson, but the officers

refused. To have given the backpack to Johnson as Saxton requested without

an examination of its contents would have undoubtedly resulted in destruction of

the relevant evidence.       Although Saxton had been subdued, his companion,

Johnson, was still free to access the backpack until it had been seized by the

officers. The search of the backpack was a lawful search incident to an arrest.
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       B. Sufficiency of the Evidence

       When the sufficiency of the evidence is challenged, the review is for

corrections of errors at law. State v. Adney,
639 N.W.2d 246, 250
 (Iowa Ct. App.

2001). Consideration is to be given to all of the evidence not just the evidence

supporting the verdict, but the evidence is viewed in the most favorable light to

the State.
Id.

       Saxton does not deny he had possession of the backpack that contained

the controlled substances but contends that while the officers were occupied

attempting to subdue him the backpack was left unattended except for the

presence of Johnson. He contends Johnson had the opportunity to place the

marijuana in the bag. There was no evidence Johnson had tampered with the

bag or even took possession of it during the period the officers were subduing

Saxton.   It was incumbent on the State to prove Saxton guilty beyond a

reasonable doubt but that does not mean it is the State’s burden to prove Saxton

guilty beyond any possible doubt. See State v. Frei,
831 N.W.2d 70, 77
 (Iowa

2013). There is no reason to assume Johnson had accessed the bag while the

officers were subduing Saxton, and there was no evidence she had. Viewed in

the most favorable light to the State, there was sufficient evidence to support

Saxton’s conviction.

       C. Restitution of Attorney’s Fees

       Restitution orders are reviewed for errors of law. State v. Brewer,
547 N.W.2d 15, 16
 (Iowa Ct. App. 1996). Saxton contends the trial court did not

consider his ability to pay when it ordered him to make full restitution for his

court-appointed attorney’s fees. Saxton’s complaint is premature. The court is
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not obligated to consider the ability to pay until the plan of restitution, required by

Iowa Code section 910.3 (2013), is being considered.           State v. Swartz,
601 N.W.2d 348, 354
 (Iowa 1999).          Saxton will have the further right to seek

modification if he does not believe that the plan of restitution, which will

eventually be adopted, reflects his ability to pay. See
Iowa Code § 910.7
.

         D. Ineffective Assistance of Counsel

         Ineffective-assistance-of-counsel claims involve constitutional issues and

are therefore reviewed de novo. Ledezma v. State,
626 N.W.2d 134, 141
 (Iowa

2001).     Such claims are reserved for postconviction relief particularly when

challenged actions implicate trial tactics or strategies which might be explained

by a fully developed record regarding those issues. State v. Rubino,
602 N.W.2d 558, 563
 (Iowa 1999). On the other hand, such claims will be resolved on direct

appeal if the record is adequate.
Id.
 In this case, the record is adequate relative

to the issue raised by Saxton.

         Saxton claims ineffective assistance of counsel based on his counsel

permitting him to proceed with a trial on the minutes of testimony.            Saxton

contends that in doing so counsel failed to insure a knowing and voluntary waiver

of the right to confront witnesses and present a defense. Saxton in essence

contends the court should have involved Saxton in a colloquy somewhat similar

to that required in a plea of guilty before proceeding with a trial on the stipulated

record. He contends his counsel’s failure to object to the court’s failure to do so

constitutes ineffective assistance.

         When a defendant stipulates to a bench trial on the minutes the court must

(1) verify the defendant has waived his right to a jury, (2) confirm the extent of the
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factual record to which the parties are stipulating, and (3) find the facts specially

and on the record. State v. Sayre,
566 N.W.2d 193, 196
 (Iowa 1997). The Sayre

court specifically held that the trial court need not undertake a plea colloquy or

partial plea colloquy prior to accepting a stipulated record upon which the

defendant’s guilt could be determined.
Id. at 195
. Saxton’s counsel had no

obligation to raise a meritless claim or make a meritless objection.        State v.

Brothern,
832 N.W.2d 187, 192
 (Iowa 2013).

       AFFIRMED.