State v. Formaro

• Decision Date: 24 January 2002
• Docket Number: No. 00-1082.,00-1082.
• Citation: 638 N.W.2d 720
• Parties: STATE of Iowa, Appellee, v. Robert Paul FORMARO, Appellant.
• Court: Iowa Supreme Court

638 N.W.2d 720

STATE of Iowa, Appellee, v. Robert Paul FORMARO, Appellant.

No. 00-1082.

Supreme Court of Iowa.

January 24, 2002.

Alfredo Parrish and Tammy Westhoff of Parrish, Kruidenier, Moss, Dunn & Montgomery, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat and James Ward, Assistant County Attorneys, for appellee.

CADY, Justice.

This is an appeal by Robert Formaro from a judgment and sentence for burglary in the second degree. He contends the district court relied upon unprosecuted and unproven charges in imposing the sentence and abused its discretion by failing to suspend the sentence of incarceration or grant a deferred judgment. Formaro further claims the appeal bond set by the district court in the sentencing order was excessive, and the district court lacked jurisdiction to later increase the amount of the appeal bond in response to an application for review of the bond filed by the State after the appeal was perfected. We transferred the case to the court of appeals. It affirmed the sentence imposed by the district court, as well as the original appeal bond, but vacated the decision by the district court to increase the bond. We granted further review sought by Formaro and the State. We affirm the sentencing order of the district court and further conclude the district court had jurisdiction to consider the request to review the appeal bond following the appeal, and that Formaro failed to perfect a separate appeal from the order by the district court to increase the appeal bond.

I. Background Facts and Proceedings.

During the evening hours of December 15, 1999, six men forcibly entered an apartment of a woman on the east side of Des Moines. The men ostensibly went to the apartment to collect a drug debt. One of the men was armed with a pistol. After entering, the men began to remove various items of property from the apartment, and they forced the woman to disrobe in their presence. Two of the men sexually abused the woman in her bedroom. The woman called the police after the men left her apartment, and they were eventually arrested. One of the men arrested was Robert Formaro.

Formaro was seventeen years old at the time and was a senior in high school. He was charged with burglary in the first degree. His participation in the crime was more limited than the other men. Formaro was present when access was gained to the apartment, but he left and returned to a car parked near the apartment building after one of the men brandished the pistol. He did not participate in the sexual abuse.

On April 11, 2000, Formaro pled guilty to the amended charge of burglary in the second degree, in violation of Iowa Code sections 713.1 and 713.5 (1999). Sentence was delayed until June 29, 2000. Formaro graduated from high school prior to the sentencing hearing, and was employed. Formaro was very proficient with computers, and excelled in mathematics.

A psychiatric evaluation revealed Formaro had been sexually abused as a child over a period of several years by a cousin. He was also diagnosed with an attention deficit disorder. The examiner felt Formaro had made substantial gains since his arrest, and was not a high risk to re-offend.

The presentence investigation report recommended Formaro receive a suspended sentence. It stated he was an appropriate candidate for a deferred judgment except for the seriousness of the offense. The report also revealed Formaro, when he was fifteen years old, sexually abused a young boy he was babysitting. Formaro was placed on juvenile probation for the crime, and successfully completed counseling and treatment.

The district court denied Formaro's request for a deferred judgment and sentenced him to an indeterminate term of incarceration not to exceed ten years. It set an appeal bond of $50,000. The court specifically indicated the appeal bond was to be paid in cash.

Formaro filed a notice of appeal on June 29, 2000, shortly after the sentencing hearing. He also requested a reduction of the appeal bond. The court held a hearing on the request to reduce the appeal bond on June 30, 2000, and denied the request. Formaro subsequently posted the appeal bond, and was released.

On July 11, 2000, the State filed an application to review the appeal bond. The application alleged that on July 5, 2000, an investigator for the Des Moines Police Department, posing as a thirteen-year-old boy, entered a chat room on the Internet called "Iowa M4M." The investigator received a message while in the chat room from a person using the identity "Good Lickin Male." During the chat room conversation, the person provided personal background information and eventually inquired about engaging in sex. The person also emailed his picture to the police investigator. The police identified the person as Formaro. The Internet conversation continued the next day, when arrangements were made to meet. The following day, the police investigator observed Formaro arriving at the fair grounds at the designated meeting time and place.

Based on this information, the State requested the appeal bond be revoked or that additional conditions be imposed. Formaro asserted the district court had no jurisdiction to hear the application to review the appeal bond. He claimed the district court lost jurisdiction over the case once the notice of appeal was filed. He also claimed the issues he intended to present on appeal included the excessive amount of the appeal bond.

The district court held a hearing on the application to review the bond, and received testimony from the police investigator who conversed with Formaro on the Internet and later observed him at the fair grounds. The district court increased the appeal bond to $100,000, and imposed additional restrictions and conditions on his release pending the appeal. Formaro did not file a separate notice of appeal from this order.

On appeal, Formaro claimed the district court abused its discretion by failing to suspend the sentence or grant a deferred judgment. He also claimed the district court improperly considered the sexual abuse incident involved in the burglary offense. Formaro further claimed the district court had no jurisdiction to hear the State's application to review the appeal bond. Finally, Formaro claimed the district court abused its discretion by imposing the $50,000 appeal bond at the time of sentencing.

We transferred the case to the court of appeals. It affirmed the sentence of the district court, as well as the imposition of the $50,000 appeal bond. It further determined the district court had no jurisdiction to address the merits of the State's application to review the appeal bond after the appeal was perfected. It vacated the order imposing the $100,000 appeal bond, and reinstated the bond of $50,000. We granted further review.

II. Standard of Review.

Our review of a sentence imposed in a criminal case is for correction of errors at law. Iowa R.App. P. 4; State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). We will not reverse the decision of the district court absent an abuse of discretion or some defect in the sentencing procedure. Witham, 583 N.W.2d at 678. Similarly, we review the amount and conditions of an appeal bond for an abuse of discretion. State v. Kellogg, 534 N.W.2d 431, 433 (Iowa 1995). Questions of jurisdiction are also reviewed for correction of errors at law. In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995).

III. Sentence.

We begin our analysis of the challenge to the sentence in this case by observing that the decision of the district court to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of inappropriate matters. State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983). An abuse of discretion will not be found unless we are able to discern that the decision was exercised on grounds or for reasons that were clearly untenable or unreasonable. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).

In applying the abuse of discretion standard to sentencing decisions, it is important to consider the societal goals of sentencing criminal offenders, which focus on rehabilitation of the offender and the protection of the community from further offenses. See Iowa Code § 901.5. It is equally important to consider the host of factors that weigh in on the often arduous task of sentencing a criminal offender, including the nature of the offense, the attending circumstances, the age, character and propensity of the offender, and the chances of reform. See State v. August, 589 N.W.2d 740, 744 (Iowa 1999)

. Furthermore, before deferring judgment or suspending sentence, the court must additionally consider the defendant's prior record of convictions or deferred judgments, employment status, family circumstances, and any other relevant factors, as well as which of the sentencing options would satisfy the societal goals of sentencing. Pappas, 337 N.W.2d at 493 (identifying factors listed in section 907.5 (standards for release on probation)). The application of these goals and factors to an individual case, of course, will not always lead to the same sentence. Yet, this does not mean the choice of one particular sentencing option over another constitutes error. Instead, it explains the discretionary nature of judging and the source of the respect afforded by the appellate process.

Judicial discretion imparts the power to act within legal parameters according to the dictates of a judge's own conscience, uncontrolled by the judgment of others. See id. at 493-94. It is essential to judging because judicial decisions frequently are not colored in black and white. Instead, they deal in differing shades of gray, and discretion is needed to give the necessary latitude to the decision-making...