State v. Ayers

• Decision Date: 21 January 1999
• Docket Number: No. 97-2218,97-2218
• Citation: 590 N.W.2d 25
• Parties: STATE of Iowa, Appellee, v. Cyrus Tao Tai Chi AYERS, Appellant.
• Court: Iowa Supreme Court

Page 25

590 N.W.2d 25

STATE of Iowa, Appellee, v. Cyrus Tao Tai Chi AYERS, Appellant.

No. 97-2218.

Supreme Court of Iowa.

Jan. 21, 1999.

Linda Del Gallo, State Appellate Defender, Christopher Cooklin, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Michael A. Riepe, County Attorney, for appellee.

Considered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and CADY, JJ.

LAVORATO, Justice.

A jury convicted Cyrus Tao Tai Chi Ayers of willful injury, while using a dangerous weapon, and eluding. The district court sentenced Ayers to an indeterminate ten-year prison term on the willful injury conviction and ordered him to serve at least five years of the sentence imposed because willful injury is a forcible felony. See Iowa Code §§ 708.4, 702.11, 902.7 (1997); State v. Wallace, 475 N.W.2d 197, 202 (Iowa 1991). The court also imposed a concurrent indeterminate two-year prison term on the eluding charge. See Iowa Code §§ 321.279, 903.1(2). In addition, the court imposed a $500 fine for each conviction. See Iowa Code §§ 902.9(3), 903.1(2).

Ayers appeals only from the sentence imposed. He argues the sentencing court failed to exercise its discretion as to the imposition of the five-year mandatory minimum sentence and as to the fines. We agree. We vacate only that portion of the sentence imposing a five-year mandatory minimum sentence and that portion of the sentence imposing the fines. We remand for resentencing on these portions of the sentence.

I. The Mandatory Minimum Sentence.

Iowa Code section 901.10 provides in relevant part:

A court sentencing a person for the person's first conviction under section 124.406, 124.413, or 902.7 may, at its discretion, sentence the person to a term less than provided by the statute if mitigating circumstances exist and those circumstances are stated specifically in the record....

Id. (emphasis added).

Iowa Code section 902.7 provides:

At the trial of a person charged with participating in a forcible felony, if the trier of fact finds beyond a reasonable doubt that the person is guilty of a forcible felony and that the person represented that the person was in the immediate possession and control of a dangerous weapon, displayed a dangerous weapon in a threatening manner, or was armed with a dangerous weapon while participating in the forcible felony the convicted person shall serve a minimum of five years of the sentence imposed by law. A person sentenced pursuant to this section shall not be eligible for parole until the person has served the minimum sentence of confinement imposed by this section.

As mentioned, the sentencing court ordered Ayers to serve a minimum of five years of his ten-year sentence pursuant to Iowa Code section 902.7 because he was in possession of a dangerous weapon when he committed the forcible felony of willful injury. The record is clear that this was Ayers' first conviction under section 902.7. Thus, under the plain language of section 901.10, the sentencing court had the discretion to order Ayers to serve less than the five-year mandatory minimum sentence required by section 902.7.

As the following excerpts from the record show, the defense counsel, the prosecutor, and the court were under the erroneous impression that the court had no discretion to order Ayers to serve less than the section 902.7 five-year mandatory minimum sentence:

THE PROSECUTOR: If it please the Court? With respect to [the willful injury count], a special finding with respect to the weapon, mandatory prison sentence should be imposed of ten years imprisonment, notation in the judgment entry that there was a finding of the special circumstances with respect to the weapon which would require the defendant to serve the mandatory minimum sentence pursuant to--as required by the Iowa Code.

THE DEFENSE COUNSEL: If it please the Court? Your Honor, this is a kind of a really tough time for me. It always is on sentencing in cases. Its especially tough because [Ayers] is not the type of individual that should go to prison.

This case really arose because some other, what I would call, coconspirators got two people angry enough at each other that they engaged in a confrontation using weapons, which one was seriously injured. There is no question about that. They were both injured.

I am, however, aware of what the legislature did on enhancing penalties for the use of dangerous weapons. There isn't any question but what the weapon that was used exceeded the limit that was set by the legislature to be a dangerous weapon, and therefore I know that the Court unfortunately does not have any discretion in imposing sentences as to [the willful injury count].

....

THE COURT: The Court, however, as counsel are well aware, and I feel--I assume and feel certain that the defendant, Mr. Ayers, is aware by this point in time, has no discretion whatsoever under [the willful injury count]. The legislature in this state, as in all states, makes the laws, and the legislature says that for a forcible felony, which willful injury is, there has to be an indeterminate term of no more than ten years imposed. The Court cannot grant a deferred judgment. It cannot defer sentencing. It cannot suspend the sentence. It must impose that sentence. It has no choice or discretion whatsoever in the matter.

I make these comments again because many of the letters that I received seem to believe that the Court has some discretion in the matter, and anyone who is involved in this case or has written letters, and I note that there are numerous people present in the courtroom today--I recognize the defendant, Mr. Ayers' father, who sat through the trial and others--need to know that the Court has no discretion in these matters.

If the Court had discretion in this matter, it might consider exercising that discretion in view of the defendant, Mr. Ayers's high school record, his work record, his lack of any prior difficulty whatsoever with the law, correctional systems. Apparently, nothing indicated to me that suggests that he has ever had any trouble or problems in school either, but I point out again the Court does not have that discretion. It can only do one thing under [the willful injury count], and that is impose an indeterminate term of no more than ten years.

Secondly under the jury's finding under [the willful injury count] of the use of a dangerous weapon the Court has to impose a mandatory minimum term of no more than five years. That's a restriction on parole eligibility.

(Emphasis added.)

When a sentencing court has discretion, it must exercise that discretion. State v. Finchum, 364 N.W.2d 222, 225-26 (Iowa 1985). Failure to exercise that discretion calls for a vacation of the sentence and a remand for resentencing. See State v. Lee, 561 N.W.2d 353, 354 (Iowa 1997) (holding that "[w]here a court fails to exercise the discretion granted to it by law because it erroneously believes it has no discretion, a remand for resentencing is required" ); State v. Washington, 356 N.W.2d 192, 197 (Iowa 1984). Because the court did not exercise its discretion, we must vacate that portion of the sentence imposing a five-year mandatory minimum sentence of imprisonment and we must remand for resentencing on that portion of the sentence.

We reject the State's contention that Ayers did not preserve error because he did not claim at the sentencing that the court had failed to exercise its discretion. We consider the court's failure to exercise its discretion a defective sentencing procedure to which our error preservation rules do not apply. See State v. Wilson, 294 N.W.2d 824, 825 (Iowa 1980).

We also reject the State's further contention that Ayers invited the error when his counsel, like the prosecutor and the court, thought the court had no discretion but to impose the five-year mandatory minimum term. We note that it was the prosecutor who first invited the error after which the defense counsel and the court followed suit. In these circumstances, we think it would be fundamentally unfair to invoke the error preservation rule. Moreover, it is doubtful that we would invoke the rule even had the defendant solely been responsible for the erroneous belief, especially when, as here, the statute clearly gives the sentencing court discretion.

Despite the earlier quoted excerpts from the record, the State insists that the sentencing court really did believe it had discretion to waive the five-year mandatory minimum sentence but found there were no mitigating circumstances warranting such action. To support its contention, the State points to the following question from the court: "Is there anything Mr. Ayers wants to say in mitigation of punishment or otherwise?"

The State's contention overlooks several significant factors. First, the record we have quoted clearly demonstrates the court was under the mistaken impression that it had no discretion under section 902.7. The trial judge was truly disturbed because he had no discretion to put Ayers on probation for the willful injury conviction. The judge revealed he might have exercised that sentencing option had he the discretion to do so. Given this frame of mind, there was a likelihood the judge would not have imposed the five-year mandatory minimum sentence had he known he had such discretion.

Second, the court's question came after the prosecutor's recommendation as to both counts. The court could very well have had in mind its discretion to impose concurrent prison sentences. Additionally, there was the matter of the fines on both convictions, which, as the record shows, the court felt it had some discretion. The court was probably inviting arguments from Ayers as to why it should impose concurrent prison sentences and as to why it should exercise leniency in imposing the fines.

Last, the sentencing court was following its obligation to allow Ayers his right of allocution. This,...