State v. Ohnmacht, 83-311

• Decision Date: 21 December 1983
• Docket Number: No. 83-311,83-311
• Citation: 342 N.W.2d 838
• Parties: STATE of Iowa, Appellant, v. Michael Dean OHNMACHT, Appellee.
• Court: Iowa Supreme Court

Page 838

342 N.W.2d 838

STATE of Iowa, Appellant, v. Michael Dean OHNMACHT, Appellee.

No. 83-311.

Supreme Court of Iowa.

Dec. 21, 1983.

Thomas J. Miller, Atty. Gen., and Richard L. Cleland, Asst. Atty. Gen., for appellant.

Vicki R. Danley, Sidney, for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, SCHULTZ and WOLLE, JJ.

SCHULTZ, Justice.

The underlying issue presented by this appeal concerns the power of a sentencing judge to ignore the legislatively prescribed sentence and substitute his own conception of appropriate punishment because he believes the statutory sentence would result in a miscarriage of justice. We hold that a member of the judiciary lacks such authority and is bound to impose the sentence mandated by a valid statute.

The defendant, Michael Dean Ohnmacht, and two accomplices, Ernest Harper and Rodney Freeman, robbed the Shenandoah Pizza Hut and some of its patrons on November 18, 1981. At the time of the robbery, Harper and Freeman were armed with a rifle and a shotgun. The robbers were apprehended within a few hours of the offense, and most of the money was recovered.

As a result of his participation, defendant was charged with two counts of first degree robbery in violation of Iowa Code sections 711.1 and 711.2 (1981). Although Ohnmacht claimed that his two companions forced him to participate in the robbery, the jury returned a verdict and special interrogatory finding that (1) defendant was guilty of two counts of robbery in the first degree and (2) though defendant was not himself armed during the commission of the offense, other principals were. The other two participants pled guilty and were sentenced to a term of imprisonment not to exceed twenty-five years. Iowa Code § 902.7(1) (1981).

Defendant made a motion for a new trial but it was overruled by the court at sentencing on March 11, 1982. At the hearing, the judge, reasoning that the robbery of the Pizza Hut and its patrons was merely a single continuous offense, only sentenced the defendant on one count. In lieu of imprisonment, the court suspended defendant's sentence and placed him on probation for a period of five years. It also fined him $4000 out of which his court appointed attorney's fees, court costs, and restitution were to be paid. Defendant paid the fine and has remained on probation since the sentence was imposed.

At the sentencing hearing, the county attorney objected to defendant's sentence because the factual circumstances did not justify the disparity in treatment between the defendant and his co-participants in the offense. He did not object on the ground the sentence was illegal, nor did he subsequently seek appellate review.

Some time after sentencing, the attorney for a co-participant brought defendant's sentence to the attention of the Attorney General's office. The Attorney General then contacted the county attorney and received permission from him to pursue the matter further.

On October 12, 1982, the Attorney General filed a motion, pursuant to Iowa Rule of Criminal Procedure 23(5)(a), for correction of defendant's sentence. A hearing was held on October 25, 1982. On March 14, 1983, the district court denied the State's motion on the following grounds: (1) the State waived its right to have defendant's sentence reviewed by failing to timely file notice of appeal; and (2) the parties entered a valid appeal bargain and the State is now estopped from any departure from it since defendant has detrimentally relied upon it and has done nothing to further subject himself to the court's jurisdiction.

Although defendant, both in district court and on appeal, conceded that his sentence is contrary to Iowa Code sections 902.7, 907.3 and 902.9 (1981), he insists that notions of waiver, estoppel and due process bar the State from seeking resentencing. He also challenges the Attorney General's authority to intervene in the case. The State argues that since defendant's sentence was invalid, it is subject to correction. Whenever an appeal involves constitutional issues, our review of such issues is de novo. State v. Boone, 298 N.W.2d 335, 337-38 (Iowa 1980). Before we address the propriety of resentencing, we first consider whether the Attorney General exceeded the scope of his authority when he became involved in this case.

I. Authority of the Attorney General. Defendant asserts that we should deny the State, for lack of jurisdiction, an opportunity to contest district court's ruling on the motion for correction. As we understand it, his argument rests on the fact that the county attorney did not appeal from sentencing nor did he initiate the motion for correction. In the absence of some action by the county attorney, defendant apparently claims the Attorney General did not have authority to act. Our review of the record indicates that the Attorney General acted upon the request of the county attorney. Even assuming he acted without such a request, we find no merit in defendant's contention.

In support of his claim that the Attorney General exceeded his authority, defendant relies on State v. Gill, 259 Iowa 142, 143 N.W.2d 331 (1966) where we stated: "Ordinarily, a criminal case is under the control of the county attorney until the supreme court acquires jurisdiction, after which it is under the sole control of the attorney general." Id. at 143, 143 N.W.2d at 332. We observe initially that the authority of the Attorney General was not at issue in Gill, and this language was merely an attempt to alleviate any embarrassment of the Attorney General's office about the record made by the county attorney. Id.

Nevertheless, language in other cases strongly suggests that the Attorney General is without authority to act in criminal cases until the county attorney has initiated and perfected an appeal. See State v. Fleming, 13 Iowa 443, 444 (1862); State v. Grimmell, 116 Iowa 596, 598, 88 N.W. 342, 343 (1901); Cosson v. Bradshaw, 160 Iowa 296, 301-02, 141 N.W. 1062, 1064 (1913). Notwithstanding these cases, we believe the Attorney General had both the authority and a duty to move the district court for a correction of defendant's sentence.

The power and duties of the Attorney General are defined in Chapter 13 of the Iowa Code. This chapter provides in relevant part:

It shall be the duty of the attorney general, except as otherwise provided by law to:

Prosecute and defend all causes in the appellate courts in which the state is a party or interested.

Prosecute and defend in any other court or tribunal, all actions and proceedings, civil or criminal, in which the state may be a party or interested, when, in his judgment, the interest of the state requires such action, or when requested to do so by the governor, executive council, or general assembly.

Iowa Code §§ 13.2(1) and (2) (1983) (emphasis added). Since the statute explicitly empowers the Attorney General to prosecute and defend in all actions or proceedings, civil or criminal, before any court or tribunal whenever he feels the best interests of the state require such action, it necessarily must be read to support his motion to correct defendant's sentence. The State has a paramount interest in ensuring that our laws, including sentence provisions, are faithfully executed. We conclude that the Attorney General acted within the purview of his statutory authority, and we disavow any dictum in our prior cases suggesting otherwise.

II. Void sentence. The sentence imposed on the defendant by the district court contravened the legislative mandate in several respects. First, the court, apparently acting on the authority of section 907.3, suspended defendant's sentence and placed him on probation. By its express terms, this statute does not apply to forcible felonies. The definition of forcible felony encompasses all robberies. Iowa Code § 702.11 (1981). Since defendant was convicted of first degree robbery, he was not eligible for a suspended sentence and probation in lieu of imprisonment.

Defendant's sentence was also contrary to section 902.7 which provides that an individual convicted of a forcible felony in which he used or represented that he had a firearm must serve a mandatory minimum of five years before he is eligible for parole. We have interpreted this section to apply to all principals convicted of forcible felonies involving the use of firearms whether or not a particular offender was himself armed. State v. Sanders, 280 N.W.2d 375, 377 (Iowa 1979). The jury found by way of special interrogatory that the other two participants were armed. Defendant's sentence should have included the mandatory minimum prescribed by section 902.7.

Finally, the court imposed a $4000 fine on defendant. A fine is not authorized by section 902.9(1) which governs sentencing in class "B" felonies. That section only permits a term of imprisonment not to exceed twenty-five years. Id. Iowa Code (1981). Robbery in the first degree is classified as a class "B" felony under Iowa Code section 711.2.

Despite the violation of these statutes, the defendant contends and the district court ruled that his sentence was not subject to correction since the State did not file timely notice of appeal. Although the court and defendant repeatedly talk about an appeal, Iowa Code section 814.5 does not give the State the right to appeal from a final judgment. It does provide that discretionary review is available. Nevertheless, we cannot agree that failure to seek timely discretionary review of the imposed judgment and sentence waived the State's right to seek a correction of the sentence.

When the sentencing judge departed from the legislatively mandated sentence, the pronouncement became a nullity. "[T]he sentencing process is not the sole province of the judiciary. The legislature possesses the inherent power to prescribe punishment for crime, and the sentencing authority of the courts is subject to that power." State v. Iowa District Court for Shelby County, ...