State of Iowa v. Dmarithe Culbreath

IN THE COURT OF APPEALS OF IOWA

No. 18-0586
Filed December 18, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DMARITHE CULBREATH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.

Dmarithe Culbreath appeals the sentences imposed following his guilty

pleas in two criminal cases and his stipulation to probation violations in two other

criminal cases. AFFIRMED.

Mark C. Smith, State Appellate Defender (until withdrawal), and Bradley M.

Bender, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Mullins and May, JJ.
2

MULLINS, Judge.

Dmarithe Culbreath appeals the sentences imposed following his guilty

pleas in two criminal cases and his stipulation to probation violations in two other

criminal cases. He contends the sentencing court’s consideration of the Iowa Risk

Revised assessment (IRR) contained in the presentence-investigation report (PSI)

amounted to an abuse of discretion or violated his due process rights. He also

argues the district court’s consideration of the recommendation contained in the

PSI was improper because the judicial district department of correctional services

is not statutorily authorized to provide a sentencing recommendation. He

alternatively argues his counsel rendered ineffective assistance in failing to raise

such arguments below.

We conclude the sentencing court did not abuse its discretion in considering

the IRR on its face as contained in the PSI. See State v. Headley, 926 N.W.2d

545, 551 (Iowa 2019). As to the due process claims, we find Culbreath failed to

preserve error and the record is inadequate for us to consider the claims under an

ineffective-assistance-of-counsel rubric on direct appeal; we therefore preserve

the claims, which Culbreath may raise in a postconviction-relief action if he so

chooses. See id. at 551–52. We find no abuse of discretion in the court’s

consideration of the sentencing recommendation contained in the PSI. See id. at

552. We affirm without further opinion pursuant to Iowa Court Rule 21.26(1)(c)

and (e).

AFFIRMED.