State v. Peckenschneider, 53299

• Decision Date: 17 December 1975
• Docket Number: No. 53299,53299
• Citation: 236 N.W.2d 344
• Parties: STATE of Iowa, Appellee, v. Donald PECKENSCHNEIDER, Appellant.
• Court: Iowa Supreme Court

Page 344

236 N.W.2d 344

STATE of Iowa, Appellee, v. Donald PECKENSCHNEIDER, Appellant.

No. 53299.

Supreme Court of Iowa.

Dec. 17, 1975.

John J. Carlin, Carlin & Darbyshire, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., Edward N. Wehr, County Atty., and A. Fred Berger, Jr., Asst. County Atty., for appellee.

Considered en banc.

HARRIS, Justice.

This appeal challenges the propriety of the trial court's refusal to grant probation under § 789A.1(2), The Code. We affirm.

Donald Peckenschneider (defendant) entered a guilty plea to a charge of receiving stolen goods in violation of § 712.1, The Code. There is no claim the proceedings did not comply with the rules laid down in State v. Sisco, 169 N.W.2d 542 (Iowa 1969) and Brainard v. State, 222 N.W.2d 711 (Iowa 1974). Defendant limits his challenge to the trial court's refusal to grant what is commonly called a 'bench parole.' Section 789A.1(2) provides in material part: 'By record entry at time of or after sentencing, the court may suspend the sentence and place the defendant on probation upon such terms and conditions as it may require.'

The record would have supported the grant of probation if the trial court had so chosen. In accordance with a plea bargain the county attorney did not oppose defendant's request. Probation was recommended in a presentence investigation report prepared and submitted at the trial court's request by the Iowa Bureau of Adult Correction Services.

The recommendation was based on a careful study of defendant by the bureau's parole agent. The State in no way disputes the facts outlined in the report and the trial court seems to have taken them as true. Defendant was 52 years old and married. His two daughters were 12 and 8 years of age. The family lived in the rural community of Donahue, Iowa, where they owned their own home.

Defendant's background was entirely rural. He had been self-employed during most of his life. From 1966 to February of 1975 he operated a tavern and restaurant in Donahue. The parole agent concluded:

'The present offense represents a radical departure from a lifetime which could be considered as exemplary until now. It must be assumed that, under the forces which operate in and around pool halls and like recreational facilities, the opportunities, and the temptations, for criminal activity can overcome a person's sense of fitness and propriety developed over long periods of self-discipline.

'This appears the only logical explanation for a sudden reversal of pattern evident in this case. Mr. Peckenschneider is quite remorseful, mainly because of the ugly stain on an otherwise bright shield. It is the opinion of this writer, following the interview, that Mr. Peckenschneider will suffer more in his own conscience than he would from any formalized penalty, and the chances for a recurrence should be completely nil.

'* * *

'It is recommended that this man be granted probation.'

The trial court expressed only one reason for determining to decline the recommendation for probation. The sole expressed reason was to deter thefts in the community. The record discloses the following:

'THE COURT: I pondered over this thing for a long time, and if we didn't have receivers, we wouldn't have so many breakins. We are having an epidemic of breakins in this town, as Mr. Berger will verify. Is that right?

'MR. BERGER (Prosecutor): Yes, there is a rash of crime going on that is unprecedented in this community.

'THE COURT: And these fellows wouldn't be breaking into homes and stores if they couldn't find a person to buy these things. Mr. Peckenschneider was fully aware of that, and at the time he pled guilty, I forewarned Mr. Peckenschneider that if he was pleading guilty in the hopes of getting a parole from me, that he shouldn't plead guilty. Do you remember that, Mr. Peckenschneider?

'(DEFENDANT): I don't know if those were your exact words.

'THE COURT: I cannot condone this thing, because we are having an epidemic of break-ins, and they wouldn't be breaking in if they couldn't sell the things they stole, and we have got to put a stop to it in this town. If I condone it, there will be more break-ins. And therefore, I refuse to give you a parole at this time. * * *.'

The record did not bear out the trial court's claim to have forewarned defendant he should not plead guilty in the hope of obtaining a parole.

Defendant's challenge is twofold. He asks us to repudiate our established scope of review in criminal sentences and adopt the ABA Standards of Appellate Review of Sentencing. In the alternative defendant argues the trial court's refusal to grant probation was an abuse of discretion.

I. It should first be conceded one might well question the validity of positing a probation question within the ambit of sentencing. Sentencing and probation are elsewhere thought to be distinct concepts. It is generally held denial of probation is not appealable, at least in the absence of statute. 24 C.J.S. Criminal Law § 1656, pp. 1019--1020.

Our own review of criminal sentences proceeds from an Iowa statute which we have interpreted to govern our reviews both of sentence and of probation. Section 793.18, The Code, provides:

'If the appeal is taken by the defendant, the supreme court must examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands; it may affirm, reverse, or modify the judgment, or render such judgment as the district court should have done, or order a new trial, or reduce the punishment, but cannot increase it.'

Because the mandate of § 793.18 directs our review to Judgment and not merely Sentence, we review the trial court's denial of probation. The scope of our review was described in State v. Cole, 168 N.W.2d 37 (Iowa 1969). We said:

'What is commonly called a 'bench parole' is authorized by (section 789A.1(2), The Code). This section to the extent applicable here provides: 'The trial court * * * may * * * suspend the sentence and grant probation to said person during good behavior. * * *.' (Section 789A.7) provides for the custody, care and supervision of the person to whom probation is granted by a parole agent or agency designated by the court.

'Section (789A.1(2)) says the court 'may' suspend sentence. The granting of a suspended sentence and parole is a matter of grace, favor, or forbearance. It is not a matter of right. (Authorities).

'* * * Trial courts have broad discretion in the granting or withholding of bench paroles and an appellate court will seldom interfere with their determination of such matters. There is, however, a duty to consider and determine an application for parole. State v. Boston, 233 Iowa 1249, 11 N.W.2d 407. See also second appeal in the same case, 234 Iowa 1047, 14 N.W.2d 676.

'* * *

'From these pronouncements it is clear that a trial court has a duty to hear an application for parole but has wide discretion in what must be considered in granting or denying the application.' 168 N.W.2d at 39--40. See also State v. DeVan, 205 N.W.2d 699, 700 (Iowa 1973).

The provisions of § 793.18, The Code, which allow us to reduce a sentence imposed by a trial court were adopted in 1860. Iowa seems to have been the first state to allow appellate review of legally valid sentences challenged on appeal as being excessive. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences, 15 Vand.L.Rev. 671 (1962).

Actions of a judge pronouncing sentence were of considerably more importance to a convicted criminal prior to 1907 when our indeterminate sentence law was enacted. Acts of the 32nd G.A., 1907 Regular Session, ch. 192, § 9, now § 789.13, The Code. Even so we exercised our power to reduce sentences sparingly. During the 47 year period from 1860 to 1907 we reduced sentences in only a handful of cases. The State of Iowa v. Madden, 35 Iowa 511 (1872); The State v. Hayden, 45 Iowa 11, 18 (1876); The State v. Thompson, 46 Iowa 699, 700 (1877); The State v. Doering, 48 Iowa 650, 652 (1878); The State v. Moody, 50 Iowa 443, 446 (1979); The State v. Sullivan, 51 Iowa 142, 148, 50 N.W. 572, 574 (1879); The State v. Fields, 70 Iowa 196, 198, 30 N.W. 480, 481 (1886).

Our scope of review as developed accommodates the purpose and effect of the indeterminate sentence law. In 1907 (except for the crimes excluded in § 789.13, The Code) the responsibility of determining the length of a prison sentence was shifted from the trial court to the board of parole. State v. Cupples, 260 Iowa 1192, 1196, 152 N.W.2d 277, 279 (1967) and authorities. It remains for the trial court to determine for most felonies, including receiving stolen goods under § 712.1, The Code, whether the convicted person receives an indeterminate prison sentence or jail sentence or fine or some combination of such punishments. Section 789.15, The Code. Under § 793.18, The Code, we have retained authority to reduce the punishment thus imposed but not to determine the length to be served under an indeterminate sentence.

In a long line of cases we have consistently said the determination of whether to sentence a defendant to jail or assess a fine rather than sentencing him to imprisonment in the penitentiary is addressed to the sound discretion of the trial court. State v. Jennings, 219 N.W.2d 1, 1--2 (Iowa 1974); State v. DeVan, 205 N.W.2d 699, 700 (Iowa 1973). These cases also note the trial court has similar discretion on the question of probation.

We have demonstrated a growing reluctance to interfere with the trial court's discretion. The reason for that reluctance is apparent. The statutory scheme outlined in the indeterminate sentence act is complemented by specific powers given the parole board. Under § 247.5, The Code, power is given the board of parole to determine whether a parole should be granted any inmate, other than those serving...