State v. Peterson, 67400

• Decision Date: 22 December 1982
• Docket Number: No. 67400,67400
• Citation: 327 N.W.2d 735
• Parties: STATE of Iowa, Appellant, v. Carl PETERSON, Appellee.
• Court: Iowa Supreme Court

Page 735

327 N.W.2d 735

35 A.L.R.4th 181

STATE of Iowa, Appellant, v. Carl PETERSON, Appellee.

No. 67400.

Supreme Court of Iowa.

Dec. 22, 1982.

Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and Lawrence H. Fautsch, Asst. County Atty., for appellant.

A. John Arenz of O'Connor, Thomas, Hammer, Bertsch & Norby, Dubuque, for appellee.

Considered en banc.

McGIVERIN, Justice.

In this discretionary review granted pursuant to Iowa Code section 814.5(2)(d) (1981), the State challenges the legality of the sentence imposed upon defendant Carl Peterson by the trial court. Defendant pled guilty to assault while participating in a felony, a class "D" felony in violation of Iowa Code section 708.3 (1979). No prison sentence was imposed; trial court sentenced defendant to pay a fine of $1000 as the only sanction for the offense.

On appeal, the State contends that the fine-only sentence was illegal and void because the applicable statutes, including section 902.9(4), mandate the imposition of a sentence of incarceration of Peterson as a forcible felon. Defendant says the fine was proper and asserts that the State's contention and appeal are an attempt by the State to renege on a plea bargain. We agree with the State's contention; therefore, we vacate the sentence and remand for resentencing.

As a "maximum sentence," section 902.9(4) provides that a class "D" felon, who is not an habitual offender, "shall be confined for no more than five years, and in addition may be sentenced to a fine of not more than one thousand dollars." (Emphasis added.) The sense of section 902.9(4) obviously is that a class "D" felon may be confined and in addition may be fined. He need not actually be confined if he is eligible for and is given a deferred judgment, deferred sentence or suspended sentence pursuant to Chapter 907. Defendant, however, also was a forcible felon. Iowa Code § 702.11 ("A 'forcible felony' is any felonious assault...."). State v. Iowa District Court for Shelby County, 308 N.W.2d 27, 29 (Iowa 1981). Accordingly, he was ineligible for a deferred judgment, deferred sentence, or suspended sentence. Iowa Code § 907.3. Defendant acknowledged during the guilty plea proceedings that he knew probation was not possible. The requirement of imprisonment of forcible felons furthers the legitimate state interests of deterrence and removal from society of individuals who commit crimes against other persons. State v. Fagen, 323 N.W.2d 242, 243 (Iowa 1982). "The legislative intent clearly was to make sentences of confinement mandatory for violence-prone offenses constituting 'forcible felonies.' " Dunahoo, The New Iowa Criminal Code, 29 Drake L.Rev. 237, 249 (1980).

It would not be in compliance with the legislative intent on forcible felonies to preclude a deferred judgment, deferred sentence, and a suspended sentence and yet permit a fine instead of a sentence of confinement. If a forcible felon were fined-only, he would not even be subject to probationary conditions and supervision governing his subsequent conduct as would be true under a deferred or suspended sentence. This cannot be what the legislature intended.

I. Defendant contends that his fine-only sentence is supported by subsection 901.5(2) ("If defendant is not an habitual offender ... the court may pronounce judgment and impose a fine."). This subsection, however, is inapplicable to the present case.

Section 901.5 is only a general or summary statute providing a procedure or framework for pronouncing judgment and sentence. It does not allow the court to override or substitute a fine for the confinement specifically required when sections 902.9(4) and 907.3 are read together.

Section 901.5 states that the court shall consider several sentencing options. It goes further to say, "the court shall determine which of them is authorized by law for the offense, and of the authorized sentences," which of them is appropriate in the particular case. Six sentencing procedures are then listed. Subsection 901.5(2) is one option in section 901.5. However, the court may only follow the relevant sentencing procedure or option that is "authorized by law for the case under consideration." 4 J. Yeager and R. Carlson, Iowa Practice: Criminal Law and Procedure § 1606 at 352. That authority is determined in conjunction with the specific penalty prescribed for the offense. In this case, section 902.9(4) on class "D" felonies provides for the imposition of a fine only as an addition to the required penalty of confinement.

Thus subsection 901.5(2) is not relevant because that sentencing option of a fine-only is not authorized by law (section 902.9(4)) for the offense involved here.

Under section 901.5 the court may only impose the sentence authorized by section 902.9(4). Because defendant was a forcible felon, the court could only impose confinement, or confinement and a fine, upon defendant. Subsection 901.5(2) does not change that situation.

II. Defendant seeks further support for his fine-only sentence in section 909.1 which provides:

Upon a verdict or plea of guilty of any public offense for which a fine is authorized, the court may impose a fine instead of any other sentence where it appears that the fine will be adequate to deter the defendant and to discourage others from similar criminal activity.

Defendant contends that section 909.1 provides for the minimum sentence of a class "D" felony and supersedes the penalty provided in section 902.9(4). He would bolster this argument by the language of section 902.9 which states: "The maximum sentence for any person convicted of a felony ... shall be determined as follows...." We reject the contention that sections 902.9 and 909.1 should be read together to provide the maximum and minimum sentences for a class "D" felony. Section 902.9(4) specifies the maximum penalty--five years imprisonment and a $1000 fine--but also makes the fine only an addition to whatever option is exercised by the court relating to incarceration.

A. We conclude that section 909.2, not section 909.1, is the relevant provision of chapter 909 in this case. Chapter 909 makes general provision as to imposition of and handling of fines. Subjects covered include fine without imprisonment (section 909.1), fine in addition to imprisonment (section 909.2), installment payment of fines (section 909.3), contempt for nonpayment of fines (section 909.5), and a fine as a judgment against defendant (section 909.6). However, nothing in chapter 909 appears intended to supersede the specific penalty that may be provided or authorized for a particular offense.

Section 909.2 tracks with the specific penalty for class "D" felonies--confinement and in addition a fine. Section 909.2 provides, "The court may impose a fine in addition to confinement, where such is authorized." (Emphasis added.)

If section 909.1 were to control the result, and supersede section 902.9(4) as to the penalty for class "D" felons, it would make section 909.2 surplusage. "All parts of the enactment [chapter 909] should be considered together and undue importance should not be given to any single or isolated portion." Loras College v. Iowa Civil Rights Commission, 285 N.W.2d 143, 148 (Iowa 1979).

In view of section 909.2, which more appropriately bears on class "D" felony cases, the penalty therefor, and the general purpose of chapter 909, we conclude that section 909.1 is inapplicable to defendant's case.

B. We also conclude that the legislative intent of section 909.1 was only to provide a justification or guideline for the imposition of a fine-only sanction when an offense carries penalties cast in alternative terms of confinement, or a fine, or both. Examples are set forth in section 903.1 relative to various categories of misdemeanors. Dunahoo, 29 Drake L.Rev. at 249. Otherwise, the clear legislative intent of mandatory incarceration for forcible felonies would be frustrated.

This interpretation would be in line with Iowa Code section 789.15 (1977), the predecessor of section 909.1 (1979). Section 789.15 provided:

Discretion as to sentence. Where one is convicted of a felony that is punishable by imprisonment in the penitentiary, or by fine, or by imprisonment in the county jail, or both, the court may impose the lighter sentence if it shall so elect.

As one commentator has noted, the imposition of a fine under section 909.1 (1979) is an adoption of the pre-revised law, section 789.15 (1977). 2 Roehrick, The New Iowa Criminal Code: A Comparison at 991 (1978).

C. Defendant's construction of section 909.1 cannot prevail for another reason. The logical extension of such a construction would be that section 909.1 also would be interpreted as overriding even the mandatory confinement provision of section 902.7 for use of a firearm during the commission of any forcible felony. The latter section "provides that under such circumstances 'the convicted person shall serve a minimum of five years of the sentence imposed by law.' " Dunahoo, 29 Drake L.Rev. at 249. A fine-only sanction under section 909.1 would render section 902.7 useless, since the defendant cannot serve a "minimum of five years of the sentence imposed by law" (i.e. section 902.9(4)) by merely paying a fine. Id.

D. "Changes made by revision of a statute will not be construed as altering the law unless the legislature's intent to accomplish a change in its meaning is clear and unmistakable. An intent to make a change does not exist when the revised statute is merely susceptible to two constructions." Emery v. Fenton, 266 N.W.2d 6, 10 (Iowa 1978). Moreover, the 1978 revision of the criminal code was intended to be primarily a restatement of the prior law. State v. LeFlore, 308 N.W.2d 39, 41 (Iowa 1981).

We do not find that the language of section 909.1 "clearly and unmistakably" manifested a legislative intent to allow a forcible felon only to be fined when, to the contrary, sections 902.9(4), 907.3, 902.7, and to...