State v. Remmers
| Decision Date | 23 November 1977 |
| Docket Number | No. 59952,59952 |
| Citation | 259 N.W.2d 779 |
| Parties | STATE of Iowa, Appellee, v. Michael REMMERS, Appellant. |
| Court | Iowa Supreme Court |
Mark E. Schantz, Iowa City, for appellant.
Richard C. Turner, Atty. Gen., Mark S. Beckman, Asst. Atty. Gen., and Jack W. Dooley, County Atty., for appellee.
Considered en banc.
Defendant appeals from a 70-year prison sentence entered upon his conviction of second-degree murder. He contends the sentence is so disproportionately severe as to constitute cruel and unusual punishment and unlawful because based in part upon an impermissible consideration. We find merit in the latter contention and remand for resentencing.
The State accused defendant of murdering Kaye Mesner in Iowa City on January 10, 1976. Pursuant to a plea bargain he entered a plea of guilty and was convicted of second-degree murder. An extensive sentencing hearing was held and a presentence investigation was ordered.
As a result of these proceedings the trial court possessed considerable information about defendant when the time came for sentencing on August 25, 1976. Although much of this information concerned the present charge, some of it disclosed defendant's background and personal characteristics.
Defendant was 29 at the time of sentencing. He was born out of wedlock in Missouri in 1946. His mother married in 1947 but led an unstable life and separated from her husband when defendant was six. When he was nine defendant was arrested for burglary and placed in reform school. After he was released he lived in various foster homes and later with his stepfather. Between the ages of 17 and 27 defendant spent much of his time in penal institutions.
He falsified enlistment papers and entered the army in 1965. Six months later he was dishonorably discharged. In 1966 he was convicted of burglary in Arizona and served 15 months in prison. In 1967 he was convicted of burglary in Illinois and was incarcerated for one year. In 1969 he was convicted of two counts of armed robbery in Iowa and served four years and five months in the Fort Madison penitentiary.
During part of this period, while out of prison, he became addicted to heroin and sold drugs to support his habit.
While in the Fort Madison penitentiary defendant obtained his high school equivalency certificate and received training as a welder. After his parole in 1973 he moved to Iowa City and enrolled in the university. Shortly thereafter he left and obtained training as a welder at Kirkwood Community College. He worked as a welder for six months and was laid off. He traveled to California in the summer of 1975 and was arrested and convicted there on a seven-year-old drug charge. After serving a 60-day sentence he returned to Iowa.
In November 1975 defendant met Kaye Mesner in Iowa City. She was separated from her husband. She and defendant became lovers. Defendant was unemployed and spent much of his time in bars. At some point in this period he was charged with a drug delivery offense. In January he and Mesner quarreled on a couple of occasions. He had a pistol which he intended to use in a robbery. On January 10, 1976, when Mesner told him she intended to spend the night with another man, defendant killed her with two shots from his pistol. The present conviction is based on that homicide.
A psychologist and two psychiatrists testified at the sentencing hearing. In addition, a 1972 report on defendant from the medical security facility at Oakdale was received in evidence. The psychologist said defendant had above average intelligence but only marginal ability to control his behavior under stress.
A psychiatrist called by defendant testified that the relationship between defendant and Mesner fit a pattern of domestic quarrel which often escalates into a violent outcome. He thought the chance defendant would kill again was low but the chance he would commit offenses like robbery was fairly high.
A state psychiatrist testified defendant was referred to Oakdale in 1972 because he was a behavioral problem in the prison. The Oakdale report showed he was uncooperative and rebellious. Defendant was diagnosed as an anti-social personality. The state psychiatrist said defendant's aggressiveness in situations of stress created a serious risk to society. He acknowledged that it is not uncommon for remission or "burn-out" of such aggressiveness to occur at ages 35 or 40.
The presentence investigators furnished statistical data from the department of social services showing sentences in Iowa for 27 convictions of second-degree murder between July 1, 1973, and June 30, 1975. The sentences ranged from 10 years to 60 years, with a mean of 35 years. Additional data was obtained showing how much time had actually been served by 10 men sentenced for second-degree murder who were released from prison on parole during that same period. That data showed the following:
Sentence Year of Year Time
in Years Birth Committed Served
-------- ------- --------- ----------------
25 1944 1971 2 yr. 10 mo
25 1912 1968 5 yr. 7 mo
25 1946 1962 11 yr
30 1941 1961 12 yr. 3 mo
50 1948 1970 3 yr. 6 mo.
50 1929 1969 4 yr. 4 mo.
50 1938 1964 9 yr. 6 mo.
90 1924 1956 18 yr.
99 1938 1964 9 yr. 4 mo.
99 1931 1961 12 yr. 6 mo.
The State argued defendant should receive a sentence of life imprisonment. Defendant argued he should receive a sentence in the lower range of those ordinarily imposed for second-degree murder. the trial court made the following comment about the parole data:
I might say that I and other district court judges have been somewhat surprised and concerned about the numerous instances of early release from prison by the board of parole of defendants sentenced on second degree murder convictions. I don't know what any of these cases are, but I cannot help but surmise that the judge who sentenced the man to 25 years certainly did not do so in the contemplation that he would be released in two years and ten months. I imagine the judge who imposed the 50 year sentence in the one case was surprised, if not shocked, if he later learned the man served only three years and six months. I imagine the judge who imposed the 50 year sentence on the defendant who got out after four years and four months was a bit dismayed, and some of the other releases reflected perhaps were surprises to the sentencing judges. I think that those figures are interesting, and I think it is appropriate for a judge in imposing sentence to keep in mind what the track record reveals.
The trial court sentenced defendant to 70 years in the penitentiary and filed the following statement of reasons for doing so:
Defendant pleaded guilty to murder in the second degree. I am satisfied from the evidence that the offense was a crime of passion committed in response to a provocation. (Defendant and the victim were lovers, and defendant shot the victim to death immediately after she had stated to him that she was going to spend the night with another man.)
The nature of the offense itself indicates a sentence in the lower range permitted by law. However, the nature of the offense itself is but one factor to be considered by the sentencing judge.
State v. Cupples, 260 Iowa 1192, 1197, 152 N.W.2d 277, 280. (Emphasis supplied.)
The foregoing language from the Cupples case was quoted with approval by the Iowa Supreme Court in State v. Overstreet, 243 N.W.2d 880 at 887, a decision filed on June 30 of this year. In the Overstreet case the Court affirmed the trial judge's sentence of life imprisonment for second degree murder.
The following considerations lead me to conclude that the lengthy term of years sentence I have imposed is appropriate and just:
1. At the time of the murder, defendant was in possession of a loaded gun because he had obtained its possession the preceding night for the purpose of committing an armed robbery. (By the time of the murder, he had cancelled his plans to commit the robbery and had decided to dispose of the gun by throwing it in the Iowa River, but this does not alter the original reason for which he acquired it.)
2. Defendant's past criminal record, including two robberies with aggravation.
3. The opinions of psychiatrists who have examined defendant that he is an anti-social personality, possessed of latent anger, who tends to resort to aggressiveness as a back-up mechanism in dealing with problems when his primary mechanism of using his personality and likeableness fails. One psychiatrist expressed the opinion that there is a "significant likelihood" of risk to society if there is an early release from prison of defendant.
4. Statistics contained in Court's Exhibit 1, a copy of which is attached hereto, establish a likelihood of release on parole within a few years, perhaps less than five if a sentence of 50 years or less is imposed.
The length of the sentence imposed is selected in the hope that it will keep defendant confined until maturation and "burn-out" of his aggressiveness reasonably assure that his release into society will not present a threat to society.
A copy of the statement of reasons was forwarded to the warden of the penitentiary.
The questions in this appeal are whether the sentence is so disproportionately severe that it constitutes cruel and unusual punishment and whether the trial court's attempt to influence parole possibilities, shown...
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...prerogative of the parole board by considering the effect a sentence will have on a defendant's parole date."); State v. Remmers , 259 N.W.2d 779, 784 (Iowa 1977) (en banc).If the legislative branch believes the executive branch is thwarting legislative intent with regard to the duration of......
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...State v. Freeman, 223 Kan. 362, 574 P.2d 950, 956 (1978); State v. Mitchell, 563 S.W.2d 18, 27 (Mo.1978) (en banc); State v. Remmers, 259 N.W.2d 779, 782 (Iowa 1977); Stockton v. Leeke, 237 S.E. 896, 897-98 (S.C.1977); State v. Calendine, 233 S.E.2d 318, 330 (W.Va.1977); State v. Lee, 87 Wa......
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...the prerogative of the parole board by considering the effect a sentence will have on a defendant's parole date."); State v. Remmers, 259 N.W.2d 779, 784 (Iowa 1977) (en banc). If the legislative branch believes the executive branch is thwarting legislative intent with regard to the duratio......
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