State v. Oliver
| Decision Date | 23 December 1998 |
| Docket Number | No. 97-1279,97-1279 |
| Citation | 588 N.W.2d 412 |
| Parties | STATE of Iowa, Appellee, v. Rhonda OLIVER, Appellant. |
| Court | Iowa Supreme Court |
Kermit L. Dunahoo of Dunahoo Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Ralph E. Marasco, Jr., Assistant County Attorney, for appellee.
Considered by McGIVERIN, C.J., and CARTER, LAVORATO, SNELL, and CADY, JJ.
Defendant Rhonda Oliver appeals from the sentence imposed following her guilty plea to the charge of fourth-degree theft, contending the sentence must be vacated because of the district court's failure to state reasons for the sentence imposed. Oliver also contests the assessment of a $100 probation enrollment fee. We affirm the assessment of the probation fee, but vacate the one-year suspended sentence imposed by the district court and remand for resentencing.
Defendant Rhonda Oliver was charged with theft for stealing money from her place of employment. She pled guilty to a charge of fourth-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(4) (1997). The district court sentenced Oliver to a one-year suspended sentence. The court specified this sentence was to run consecutively to sentences imposed in two Appanoose County cases. However, the court ordered that her probation pursuant to the suspended sentence was to run concurrently to her other terms of probation. No reasons were stated at the sentencing hearing or in the sentencing order for the sentence imposed. The district court also imposed a $100 probation enrollment fee pursuant to Iowa Code section 905.14 (Supp.1997). Oliver objected, claiming that because the law did not become effective until after she had committed the theft and pled guilty, its application to her operated as an ex post facto law in violation of the United States and Iowa Constitutions. See U.S. Const. art. I, § 10, cl. 1; Iowa Const. art. I, § 21.
"We review the record to determine if the district court abused its discretion in failing to state reasons for the sentence imposed." State v. Mudra, 532 N.W.2d 765, 766 (Iowa 1995) (citing State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982)). An abuse of discretion will be found only when a court acts on grounds clearly untenable or to an extent clearly unreasonable. Id. We review Oliver's constitutional claim de novo. Iowa R.App. P. 4.
Oliver first contends her sentence must be reversed and the case remanded for resentencing because the district court failed to state reasons for the sentence imposed. Iowa Rule of Criminal Procedure 22(3)(d) requires a trial court to state on the record its reasons for selecting a particular sentence. Although the explanation need not be detailed, at least a cursory explanation must be provided to allow appellate review of the trial court's discretionary action. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989) ().
The district court stated as follows at the sentencing proceeding:
In your case I do find you guilty of the offense of theft in the fourth degree.... I'm going to sentence you to incarceration for a period of one year. I'm going to suspend that time, and I'm going to place you on formal probation for a period of one year from today's date. Your jail sentence is going to run consecutive with your sentence in Appanoose County....
....
... [I]t is my intention for probation in this matter [to] run concurrently with her other probation. I know the sentence ran consecutively....
The record is devoid of any reasons for the sentence imposed. As shown by the court's statement excerpted above, no reasons were given for either the length of sentence chosen or the decision to have the sentence run consecutively to the Appanoose County sentence.
The State responds that Oliver did not preserve error on this issue because it cannot be determined from the record whether the plea agreement included a provision for the imposition of a sentence that would run consecutively to the Appanoose County sentence. If that were the case, no statement of reasons would have been necessary, because the court would not be exercising its discretion, but merely giving effect to the parties' agreement. See State v. Snyder, 336 N.W.2d 728, 729 (Iowa 1983). Therefore, the rationale behind rule 22(3)(d) would be inapplicable. See id.
Unlike prior cases in which we have found no abuse of discretion because the defendant failed to provide a sufficient record for review, see, e.g., Mudra, 532 N.W.2d at 766, the record here is sufficient to enable review of the district court proceedings. The petition to plead guilty does not disclose a provision for consecutive sentences. Moreover, the district court did not reference such an agreement at the sentencing proceeding when it imposed consecutive sentences. We find the State's intimation that such an agreement existed, without further proof, to be without merit.
The State argues next that despite the district court's express statement at the sentencing hearing regarding its intent to have the sentence run consecutively to the Appanoose County sentence, the court did not actually impose consecutive sentences because the sentence was suspended and the probation terms were ordered to run concurrently. Thus, the State reasons that because the consecutive sentence provision would only take effect if the defendant violated the terms of probation, the court was not required to give any reasons for choosing such a sentence.
This argument ignores the fact that the court failed to give any reason for the sentence imposed--not only regarding the consecutive sentence provision, but regarding the length of sentence as well. This omission alone is sufficient error to warrant vacation of the defendant's sentence. See Iowa R.Crim. P. 22(3)(d) (). Furthermore, we recently noted in State v. Patterson, 586 N.W.2d 83, 84 (Iowa 1998), that although the suspension of a sentence prevents or delays its execution, it does not alter its character as a sentence of confinement. Therefore, the sentence imposed must be considered a consecutive sentence, not a concurrent sentence as the State submits. We reject the State's argument that consecutive sentences were not actually imposed.
The State finally argues "it is clear from the record" that the reason for imposing this particular sentence was the defendant's prior criminal record. Although the record does disclose prior offenses committed by the defendant, the court does not list this as a reason, nor does it list any reason, for imposing this sentence. Thus, we reject this contention as well.
Based on the district court's failure to disclose its reasons for the sentence imposed, we vacate the portion of defendant's sentence which imposes a one-year suspended jail sentence and remand for resentencing.
Oliver also contends the district court improperly assessed a $100 probation enrollment fee, as prescribed by Iowa Code section 905.14 (Supp.1997). Oliver contends...
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