STATE v. SIEVING (2001)

This appeal presents the question whether a person convicted of possession of a controlled substance under Iowa Code section 124.401(5) (1999) can be sentenced as a second offender under the enhanced sentencing provisions of the subsection based upon a 1985 conviction for possession of a controlled substance when the crime was defined under section 204.401(3) (1985).   We conclude the prior conviction can be used to elevate the offense and enhance the sentence.   We affirm the judgment of conviction and sentence of the district court.

Kevin Sieving was arrested for the crime of possession of a controlled substance after police found him passed out near an apartment building with a baggy of marijuana in his possession.   The State subsequently charged Sieving with possession of a controlled substance as a second offense under section 124.401(5), based on a prior conviction for possession of a controlled substance in 1985.   Sieving was convicted of possessing lysergic acid in 1985.

Sieving pled guilty to the charge, but claimed his prior conviction could not be used to elevate his sentence from a serious misdemeanor to an aggravated misdemeanor because section 124.401(5) specifically limits the enhanced sentencing provisions to prior convictions of “this subsection” and his prior conviction was under section 204.401(3).   The district court rejected the argument and sentenced Sieving for his crime as an aggravated misdemeanor.

Sieving appeals.   He claims the district court erred in elevating the offense to an aggravated misdemeanor under section 124.401(5).   He also claims his attorney was ineffective for permitting him to plead guilty to the crime as a second offender when there was no factual basis for a prior offense.

In State v. DeCamp, 622 N.W.2d 290 (Iowa 2001), decided on this date, we held that a prior conviction for the crime of possession of a controlled substance in violation of section 124.401(5) or any predecessor section or subsection could be considered in applying the enhanced sentencing provisions of section 124.401(5).   This holding is dispositive of the claims raised by Sieving in this case.   Based on the rationale we expressed in DeCamp, we conclude Sieving was properly sentenced as a second offender.   Additionally, we reject the claim of ineffective assistance of counsel.   The prior conviction in this case was not an element of the offense charged.   See State v. Ridout, 346 N.W.2d 837, 838-39 (Iowa 1984);  State v. Tobin, 333 N.W.2d 842, 845 (Iowa 1983).

AFFIRMED.

PER CURIAM.