State v. Hildebrand

• Decision Date: 27 June 1979
• Docket Number: No. 62421,62421
• Parties: STATE of Iowa, Appellee, v. Dorothy Faye HILDEBRAND, Appellant.
• Court: Iowa Supreme Court

Page 393

280 N.W.2d 393

STATE of Iowa, Appellee, v. Dorothy Faye HILDEBRAND, Appellant.

No. 62421.

Supreme Court of Iowa.

June 27, 1979.

J. Hobart Darbyshire of Carlin & Darbyshire, P. C., Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Kermit L. Dunahoo, Asst. Atty. Gen., and J. E. Tobey, Asst. Scott County Atty., for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

Defendant Dorothy Faye Hildebrand appeals from judgment entered upon her OMVUI conviction. She asserts trial court abused its discretion in refusing to defer sentence because of a personal, fixed policy to deny deferral when an accident accompanies the violation. We vacate the judgment and remand for resentencing.

The State does not dispute defendant's version of the facts. April 18, 1978, defendant was arrested for OMVUI, a violation of section 321.281, The Code 1979, after driving into a parked car in Davenport. Following her guilty plea a presentence investigation was ordered. It disclosed defendant was forty-three years old, married, and a full-time employee in her husband's business. Before working in her husband's business she had been employed for sixteen years at the Rock Island Arsenal. Damage to the parked car had been paid by her insurance company.

The presentence investigation report stated defendant "would appear to be an individual who would successfully complete the stipulations normally associated with a deferred sentence without formal probation supervision," and recommended defendant receive a deferred sentence.

At the sentencing proceedings on June 30, 1978, the court indicated receipt of the presentence investigation. The assistant county attorney stated his office concurred with the recommendation in the report. Defense counsel emphasized defendant's lack of criminal record, perfect driving record, and excellent employment history, and requested that the court defer sentence.

The following colloquy then ensued:

THE COURT: Mrs. Hildebrand, do you have anything you wish to say?

MRS. HILDEBRAND: No, I don't really think I have anything I want to say. I feel terrible about it.

THE COURT: Well, in view of the fact there was an accident involved here, I am not inclined to grant a deferred sentencing in this matter. Therefore, the request for a deferred sentence in this matter is denied.

MR. DARBYSHIRE: Would Your Honor be more specific with respect to the denial of the deferred sentence. Is the only reason that the deferral is being denied the fact that there was an accident involved?

THE COURT: Yes. I do not believe that the law requires me to give a deferred sentence under any circumstances; and I have the policy that when there is an accident involved, I do not and will not grant a deferred sentence. If the Supreme Court tells me I have to grant a deferred sentence when the defendant asks for it, then that's another story. But so far, I don't believe the Supreme Court has said that. The Supreme Court has allowed the sentencing judge to have some discretion, although very little. But in exercise of my discretion, I maintain that when there is an accident involved, particularly an accident in which the defendant is clearly at fault, I do not believe it warrants a deferred sentence, and I will not grant a deferred sentence.

(Emphasis added.)

Trial court imposed a $400 fine and a ten-day jail term. Confinement was suspended during defendant's good behavior. Her driver's license was suspended for 120 days.

Defendant contends trial court's avowed inflexible policy of refusing to defer sentence when the offense involved an accident constituted an abuse of discretion. She asserts this resulted in trial court's failure to review all factors to be considered in sentencing and to fashion an individualized punishment.

I. This appeal requires us to study sentencing procedures and alternatives under the new Iowa Corrections Code. Chs. 901-909, The Code 1979; Iowa R.Crim.P. 22. Section 901.2 provides:

Upon a plea of guilty . . . upon which a judgment of conviction of any public offense may be rendered, the court Shall receive from the state, from the judicial district department of correctional services, and from the defendant any information which may be offered which is relevant to the question of sentencing. . . . The court may order a presentence investigation when the offense is an aggravated or serious misdemeanor.

(Emphasis added.) Section 901.5 provides:

After receiving and examining all pertinent information, including the presentence investigation report, if any, the court Shall consider the following sentencing options. The court Shall determine which of them is authorized by law for the offense, and of the authorized sentences, which of them or which combination of them, In the discretion of the court, will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others.

At the time fixed by the court for pronouncement of judgment and sentence, the court shall act accordingly:

1. If authorized by section 907.3, the court May defer judgment and sentence for an indefinite period in accordance with chapter 907.

2. If the defendant is not an habitual offender as defined by section 902.8, the court may pronounce judgment and impose a fine.

3. The court may pronounce judgment and impose a fine or sentence the defendant to confinement, or both, and suspend the execution of the sentence or any part of it as provided in chapter 907.

4. The court may pronounce judgment and impose a fine or sentence the defendant to confinement, or both.

5. If authorized by section 907.3, the court may defer the sentence and assign the defendant to the judicial district department of correctional services.

6. The court may pronounce judgment and sentence the defendant to confinement and then reconsider the sentence as provided by section 902.4 or 903.2.

(Emphasis added.) Iowa R.Crim.P. 22(3)(d) provides: "The court shall state on the record its reason for selecting the particular sentence."

These statutes make it clear that sentencing remains within trial court's discretionary power. We will interfere with its section 901.5 decision only if such discretionary power has been abused. See State v. Killpack, 276 N.W.2d 368, 373 (Iowa 1979); State v. Warner, 229 N.W.2d 776, 782-83 (Iowa 1975).

Both before and after enactment of the Iowa Corrections Code, however, we have indicated trial court must actually Apply discretion:

The trial court and we on review should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual.

State v. Cupples, 260 Iowa 1192, 1197, 152 N.W.2d 277, 280 (1967). The same rule appears in State v. Overstreet, 243 N.W.2d 880, 887 (Iowa 1976), State v. Warner, 229 N.W.2d at 783, State v. Banks, 213 N.W.2d 483, 487 (Iowa 1973), and State v. Kendall, 167 N.W.2d 909, 911 (Iowa 1969). After enactment of the Iowa Corrections Code it was applied in State v. Thompson, 275 N.W.2d 370, 371-72 (Iowa 1979). It is obvious here that if trial court abused its discretion it was in the context of failing to Apply a reasoned discretion under this rule.

Pertinent is the rationale we followed in State v. Jackson, 204 N.W.2d 915, 916 (Iowa 1973) (quoting from In re Frazzita, 147 N.Y.S.2d 11, 16-17 (Sup.Ct.1955)):

There are many instances in which the Supreme Court and other courts are required to exercise discretion. Any such determination has long been recognized as requiring an actual exercise of judgment upon the part of the court. To do so necessitates a consideration by the court of the facts and circumstances which are necessary to make a sound, fair and just determination. The court is not permitted to arbitrarily establish a fixed policy to govern every case, as that is the exact antithesis of discretion.

The same reasoning was invoked earlier in State v. Boston, 233 Iowa 1249, 1257, 11 N.W.2d 407, 411 (1943). This court held trial court abused its discretion in refusing to consider a "parole application" because "in all his experience on the bench he had never allowed a parole."

In State v. McKeever, 276 N.W.2d 385, 387 (Iowa 1979), we characterized Jackson and Boston as holding "that the punishment must fit the particular person and circumstances under consideration; each decision must be made on an individual basis, and no single factor, including the nature of the offense, will be Solely determinative." (Emphasis added.)

More recently, we again cautioned:

The duty of a sentencing judge in every case is to consider the available options, to give due consideration to all circumstances in the particular case, and to exercise that option which will best accomplish justice both for society and for the individual defendant. Chapter 789A (The Code 1975; See chapter 907, The Code 1979) sets out guidelines to assist in this task.

State v. Robbins, 257 N.W.2d 63, 70 (Iowa 1977).

In the case before us it is plain the sentencing court, instead of considering the minimal essential factors we consistently have identified, impermissibly selected only one an attending circumstance which triggered the court's previously-fixed sentencing policy. It is equally clear the court's personal, well-defined rule precluded the exercise of its discretion in rendering judgment. See Jackson, 204 N.W.2d at 917.

We therefore vacate the sentence and remand for resentencing, at which time trial court shall employ its discretion in light of all those factors identified in Cupples. In so holding we do not intimate the accident is unimportant or irrelevant as an attending circumstance, nor do we suggest what the sentence should be. We only direct...