State v. Howell

• Decision Date: 19 March 1980
• Docket Number: No. 62955,62955
• Parties: STATE of Iowa, Appellant, v. Steven Wayne HOWELL, Appellee.
• Court: Iowa Supreme Court

Page 355

290 N.W.2d 355

STATE of Iowa, Appellant, v. Steven Wayne HOWELL, Appellee.

No. 62955.

Supreme Court of Iowa.

March 19, 1980.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Lee E. Poppen, Wright County Atty., for appellant.

Brian R. Johnsen, Humboldt, for appellee.

Considered by REYNOLDSON, C. J., and REES, HARRIS, McGIVERIN, and LARSON, JJ.

HARRIS, Justice.

Steven Wayne Howell was convicted of and sentenced for possession of a schedule II controlled substance (amphetamines) with intent to deliver in violation of sections 204.206(5) and 204.401(1), The Code 1975. The State appeals from Howell's resentence to five years imprisonment with probation after a term of 180 days at a "community correctional residential facility." Howell cross-appeals from his conviction, assigning error in various pretrial, trial, and post-trial rulings. We reverse the conviction and remand the case for a new trial.

After the guilty verdict was returned Howell requested an accommodation hearing and sought unsuccessfully to waive a jury trial there. The jury again found against Howell.

Howell first received a sentence of five years imprisonment, reduced to a term of six months in jail and five years probation. Both parties filed notices of appeal. Thereafter, by agreement between Howell and the State, both appeals were dismissed.

Nearly two years later an application for hearing on revocation of probation was made because of Howell's violation of probationary rules. Hearing on that application was held October 27, 1978, at which time his sentence was declared void and resentencing was ordered. The original sentence was invalidated by our opinion in State v. Harris, 251 N.W.2d 483, 484 (Iowa 1977). In Harris we held that section 789A.1(2), The Code 1975, precludes the imposition of probation with a preliminary term of confinement. See also § 907.3(2), The Code 1979.

Howell asserted that the State was estopped by the bargain from seeking a new sentence. He also claimed that the resentencing denied him due process guaranteed by the state and federal constitutions.

Believing that, under our holding in Harris, it had the power to do so, the trial court, on December 28, 1978, resentenced Howell to five years imprisonment, suspended with probation after 180 days, at the residential facility. Both parties appeal.

I. For two reasons the State is clearly correct in asserting that the trial court was without power to grant probation either as a part of defendant's original sentence or resentence.

The first reason is statutory. Under sections 204.401 and 204.410, The Code 1975, Howell's sentence should have been "imprisonment in the penitentiary for not to exceed five years and . . . a fine of not more than one thousand dollars." The provision for mandatory imprisonment was retained in sections 204.401, 204.410, and 204.413, The Code 1979. According to section 789A.1, The Code 1975, the trial court was expressly denied the power to suspend sentence and place on probation any defendant found guilty of possession of a schedule I or schedule II controlled substance with intent to deliver for profit. This prohibition was retained when section 789A.1 was re-enacted into the new criminal code as section 907.3 The Code 1979.

The State's position is also supported by our case law. Iowa courts hold no inherent power to grant probation. Probation may be granted only where, and to the extent, it is authorized by statute. State v. District Court (Cass County), 248 Iowa 250, 254, 80 N.W.2d 555, 557 (1957). Accordingly a trial court cannot avoid a statutory mandate to impose a period of imprisonment.

Howell responds to these prohibitions by pointing to the bargain he made with the State soon after his original sentence. He and the State had both appealed. As a result of an agreement both appeals were dismissed and Howell served six months in the county jail. He now argues that, having served the term under his original sentence, it would violate due process to revoke the bargain and impose a five-year penitentiary term. In somewhat the same vein he separately argues that the State is estopped from now challenging the bargain.

Howell's constitutional argument rests on the general interdiction in our sentencing cases against "circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." State v. Drake, 259 N.W.2d 862, 867 (Iowa 1977), quoting State v. Delano, 161 N.W.2d 66, 74 (Iowa 1968). Drake, however, concerned only a delay in resentencing. It did not involve an invalid sentence. State v. Oxberger, 255 N.W.2d 138, 139-40 (Iowa 1977); State v. Wiese, 201 N.W.2d 734, 737 (Iowa 1972). Similarly, State v. Taylor, 254 Iowa 94, 137 N.W.2d 688 (1965), cited by Howell, does not support his position. Taylor differs on the facts because Taylor had not completed his sentence when he was given an increased term by the trial court. In upholding the trial court we carefully restricted the holding to the facts in Taylor. We pointed out, "We make no determination at this time on the power of the court to correct an invalid sentence after it has been fully executed." 258 Iowa at 97-98, 137 N.W.2d at 689.

In arguing that the State is estopped from contesting what he calls the "appeal bargain" of 1976 Howell seeks to draw an analogy to the rule of enforceability of plea bargains. State v. Edwards, 279 N.W.2d 9, 11 (Iowa 1979); State v. Kuchenreuther, 218 N.W.2d 621, 623-24 (Iowa 1974); Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971).

We do not believe Howell can prevail either on his due process or estoppel contentions. Because it was invalid, the sentence upon which he relies was outside the power or discretion of the sentencing court. There is no hint of deception. Apparently the presiding judge, the prosecutor, and Howell's own counsel honestly misapprehended the power of the trial court. Surely it should not lie within the authority of bargaining counsel and a willing judge to thus reshape the parameters of allowable punishment. If Howell were to prevail upon either of these contentions we would be left the anomalous situation in which parties could make their own law whenever a judge could be persuaded to allow it.

Here, of course, Howell has invested the period of his incarceration. This may or may not prove to have been wasted, depending on whether he is convicted upon retrial. Another form of prejudice, the loss of opportunity to appeal within the allowable time, will be cured in the following divisions. As will be seen we shall consider his assignments on their merits.

II. Howell argues that the trial court should have suppressed evidence obtained during a search.

On August 2, 1975, a search warrant was issued against a Wright County farmhouse at which Howell was staying. The information upon which the warrant was based did not identify the informant. The informant did not appear before the magistrate and the warrant made no endorsement or other showing of the informant's reliability. On the basis of the warrant a raid was conducted during which Howell was found in bed. From that bedroom the officers seized a quantity of drugs in tablet form which were found in his female companion's purse. More pills were seized in the living room.

By appropriate motions Howell has consistently challenged the use of the evidence obtained during the search. Two interrelated grounds are presented, the magistrate's failure to perform his statutory duty under section 751.4, The Code 1975 (now section 808.3, The Code 1979), and the lack of probable cause for the search.

Where an informant is employed, section 751.4 requires that the issuing magistrate "shall only identify the peace officer to whom the information was given and that he finds that such informant had previously given reliable information." The application for the search warrant here identified the affiant, deputy sheriff Vernon Elston of Wright County. Howell denies, however, that the application sufficiently showed the magistrate's satisfaction with the reliability of the informant. He points out that the issuing magistrate must himself endorse the informant's reliability on the application. "(I)f the basis for issuance of the warrant is supplied wholly or in part by an informant, the magistrate shall likewise endorse on the application . . . an abstract of the factual showing made, under oath or affirmation, upon which the magistrate determined reliability of the informant." State v. Schlenker, 234 N.W.2d 142, 144 (Iowa 1975), quoting State v. Spier, 173 N.W.2d 854, 862 (Iowa 1970). According to the face of the application the requirement of endorsement by the magistrate was not met.

The State argues there was substantial compliance, citing State v. Valde, 225 N.W.2d 313 (Iowa 1975). In Valde an informant personally appeared before the magistrate and gave sworn testimony. The name and address of Valde's informant were omitted from the endorsement of the application. The omission by the magistrate in Valde was because of his reading of the portion of section 751.4 applicable here ("(T)he magistrate shall only identify . . . that he finds that such informant had previously given reliable information."). Notwithstanding the magistrate's mistake we found substantial compliance because of the obvious lack of any prejudice from the error because of the presence of the informant before the magistrate. 225 N.W.2d at 316-17. Here by contrast, in the absence of the required endorsement, there is no showing of any evidence which would justify issuing the warrant.

We believe and hold that Howell must prevail on his claim that the search warrant was improperly issued for failure to comply with the statute. It is not necessary to consider his claim there was no probable cause.

III. The trial court refused Howell's application that the informant be identified. Howell assigns this...