State v. Ashley
| Decision Date | 17 October 1990 |
| Docket Number | No. 89-204,89-204 |
| Citation | 462 N.W.2d 279 |
| Parties | STATE of Iowa, Appellee, v. Roger Dale ASHLEY, Appellant. |
| Court | Iowa Supreme Court |
Stanley E. Munger, Sioux City, for appellant.
Thomas J. Miller, Atty. Gen., Mark Joel Zbieroski, Asst. Atty. Gen., and Mark J. Schouten, Co. Atty., for appellee.
Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, SNELL, and ANDREASEN, JJ.
Roger Dale Ashley pled guilty to first-degree theft, Iowa Code §§ 714.1(2), (3); 714.2(1) (1987), and was sentenced to imprisonment for a term not to exceed ten years. He claims that the court erred at sentencing by (1) refusing to allow him to withdraw his guilty plea on the ground that the State had breached an agreement not to prosecute him; and (2) admitting evidence of other, unproven crimes. The appeal was initially referred to the court of appeals, which affirmed Ashley's conviction by an evenly divided vote. See Iowa Code § 602.5106(1). On further review of that decision, we vacate the decision of the court of appeals, vacate the sentence, and remand for resentencing.
Ashley, former sales manager for the Sioux Center Farmers Co-op Society, admittedly converted approximately $67,000 of the co-op's assets. Before the co-op filed a complaint, its general manager, Marvin Ritchason, met with the Sioux County Attorney, Mark Schouten, to seek advice as to how the co-op should proceed.
Ritchason also met with Ashley prior to the time Ashley was charged. Ritchason demanded that Ashley pay the co-op $13,000 or "other options" would be pursued. Ritchason claims the "other options" referred only to the co-op's civil options; however, Ashley has a different view of the discussion. He claims that Ritchason was acting as an agent of the county attorney and that Ritchason's demand for payment amounted to an agreement not to prosecute if the $13,000 was paid. He claims that the State reneged on that agreement and now seeks to withdraw his guilty plea. He did not attempt to withdraw the plea prior to sentencing because, he claims, he was unaware of the meeting between the co-op manager and the county attorney until it was brought out at the sentencing hearing.
Ashley supports his implied agency argument by citing Popejoy v. Eastburn, 241 Iowa 747, 41 N.W.2d 764 (1950), in which we stated:
The relationship of principal and agent is not dependent upon express agreement between the parties--it may be implied from either words or conduct of the parties, depending upon the circumstances of the case.
Id. at 754, 41 N.W.2d at 768. See also Walnut Hills Farms, Inc. v. Farmers Coop. Co., 244 N.W.2d 778, 780-81 (Iowa 1976); Bauman v. Nutter, 328 N.W.2d 354, 357 (Iowa App. 1982); Restatement (Second) of Agency § 26 (1958).
The only evidence offered by Ashley to support the argument is that Ritchason received advice from the county attorney before making the demand for payment of the $13,000. To create an agency relationship, however, the principal must agree that the agent act on his behalf and the agent must be subject to his control. See Walnut Hills Farms, 244 N.W.2d at 781; Restatement (Second) of Agency §§ 14, 15 (1958). There is no evidence that Schouten consented to let Ritchason make any agreements on behalf of the county attorney. In fact, the record shows just the contrary. Schouten specifically advised Ritchason not "to cut any deals" with Ashley. Ashley also failed to establish that the county attorney had any control over Ritchason. Because we reject Ashley's claim of implied agency, we affirm the district court's denial of his application to withdraw his guilty plea.
At sentencing, the court advised Ashley that he could make a statement in mitigation of punishment as provided by Iowa Rule of Criminal Procedure 22(3)(d). Ashley requested that he not be sent to prison, and produced witnesses to support his claim that he was a good candidate for probation. Tunis Vollink was one of those witnesses. On cross-examination of Vollink by the county attorney, this exchange occurred:
The standard is whether or not I have some factual basis for it, and I feel I have.
It's--it's a brand new topic, which I've never been confronted with, had no knowledge of, and I don't think it's fair that this information be brought up at this time by the County Attorney.
If he had this information, he should have provided it to the Probation Department and to me, because we were directed by this Court to exchange information prior to this hearing so that we could each fairly prepare for this hearing.
Now, I've never been confronted with this by Mr. Schouten [county attorney]. And I have not been given an adequate opportunity at this hearing to confront that evidence, and I think it's so prejudicial it shouldn't be allowed by the Court.
Lengthy arguments of counsel surrounding the admissibility of this evidence followed. The county attorney explained that it was not his intent to establish the commission of other crimes but to introduce evidence to contradict Ashley's evidence by showing that he "had done things that didn't jibe with the other good things that were being said about the defendant." In the county attorney's argument, he stated to the court that he had received several telephone calls in regard to Ashley's sale of horses. Ashley misrepresented the sires of these horses, he claimed, and forged transfer registrations on two of the colts. Much of the evidence of Ashley's other acts came through hearsay.
Ashley contends that the county attorney's failure to provide him advance notice of these acts, which amounted to crimes, denied him due process. He also argues that the court erred by relying on these unproven crimes in imposing a prison sentence. See State v. Black, 324 N.W.2d 313, 315-16 (Iowa 1982); State v. Thompson, 275 N.W.2d 370, 372 (Iowa 1979).
The court ruled that the evidence of other acts would not be admitted to show the actual commission of these crimes but would be admitted to show Ashley's "character traits or other pertinent information" and his "general behavior characteristics."
Our court, quoting Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 98 (1966), has stated that sentencing hearings need not "conform with all of the requirements of a criminal or even of the usual administrative hearing; but ... the hearing must measure up to the essentials of due process and fair treatment." State v. Delano, 161 N.W.2d 66, 72 (Iowa 1968) (emphasis added). In State v. Drake, 259 N.W.2d 862 (Iowa 1977), we discussed the process to which a defendant is due at sentencing:
Although not identified by this court as a due process concept, we distilled the essence of required fundamental fairness in these circumstances when we said:
"A judgment in a criminal case will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct...
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