State v. Wilbourn

• Decision Date: 06 May 2022
• Docket Number: 20–0257
• Citation: 974 N.W.2d 58
• Parties: STATE of Iowa, Appellee, v. Korki Ricoh WILBOURN, Appellant.
• Court: Iowa Supreme Court

974 N.W.2d 58

STATE of Iowa, Appellee,

v.Korki Ricoh WILBOURN, Appellant.

No. 20–0257

Supreme Court of Iowa.

Submitted December 15, 2021

Filed May 6, 2022

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney General, for appellee.

Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Appel, Mansfield, McDonald, and Oxley, JJ., joined. McDermott, J., filed a dissenting opinion.

WATERMAN, Justice.

In this appeal, we must decide whether the defendant is entitled to resentencing. He was initially charged with multiple felonies including two counts of attempted murder and ultimately pleaded guilty to several drug offenses with the eight other charges dismissed in a plea agreement. The district court imposed the agreed thirty-year prison sentence with the mandatory minimum reduced by his guilty plea under Iowa Code section 901.10(2) (2019). He appealed on grounds the district court failed to consider its discretion for a lower mandatory minimum sentence under Iowa Code section 124.413(3), and a discrepancy between the fine stated orally at sentencing ($750) and in the written order ($5,000). He filed a pro se notice of appeal while represented by counsel notwithstanding Iowa Code section 814.6A (prohibiting pro se filings by represented parties), and his appellate attorney's subsequent notice of appeal was untimely.

We transferred the case to the court of appeals, which did not address the validity of the pro se notice of appeal but held it lacked subject matter jurisdiction to decide the appeal because the defendant failed to establish good cause to appeal an agreed sentence. Despite its perceived lack of jurisdiction, the court of appeals remanded the case for a nunc pro tunc order to correct the fine. We granted the defendant's application for further review.

On our review, we resolve the section 814.6A issue by allowing a delayed appeal under State v. Davis , 969 N.W.2d 783, 787–88 (Iowa 2022). The State does not contest good cause, and we conclude the discrepancy between the oral and written fine establishes good cause to appeal his entire sentence under Iowa Code section 814.6. On the merits, we conclude that the defendant failed to show the district court abused its discretion by imposing the agreed prison sentence. We agree with the parties that the fine should be reset at $750 through a nunc pro tunc order on remand.

I. Background Facts and Proceedings.

On September 4, 2019, a Marshalltown police officer heard three gunshots at 11:05 p.m. by 3rd Street and Madison. Officers responded to the scene and interviewed several women who reported that Korki Wilbourn had attacked and shot at them. Wilbourn's ex-girlfriend was one of the women. Wilbourn had assaulted her by pulling her hair and striking her in the back of her head five to six times. He then fired three shots at the other women, leaving a bullet hole in his ex-girlfriend's Honda. Wilbourn was arrested later that night. Police found packages of methamphetamine in Wilbourn's car. The methamphetamine was later measured to weigh a total of 17.62 grams.

On September 17, Wilbourn was charged by trial information with ten counts: two counts of attempted murder in violation of Iowa Code section 707.11 ; reckless use of a firearm in violation of section 724.30(1); going armed with intent in violation of section 708.8; intimidation with a dangerous weapon in violation of section 708.6; prohibited person in possession of a firearm in violation of section 724.26; possession of a controlled substance with intent to deliver in violation of sections 124.401(1)(b )(7), 124.413, and 124.401(1)(e ) ; failure to affix Iowa drug tax stamp in violation of sections 453B.3, 453B.1(3)(a )(1), 453B.1(10), and 453B.12; assault causing bodily injury in violation of sections 708.1 and 708.2(2); and driving while revoked in violation of section 321J.21.

Wilbourn did not waive his right to a speedy trial and a trial was scheduled for December. On November 22, Wilbourn filed a motion for plea change because a proposed resolution had been reached. A plea hearing was scheduled for November 25. At the hearing, the district court rejected the guilty plea because Wilbourn "indicated his desire to engage in further discovery and not enter a guilty plea." The State promptly filed additional minutes of testimony, which included a drug chemistry report for 17.62 grams of methamphetamine, and Wilbourn requested the court schedule another guilty plea hearing. Neither party filed a written plea agreement.

On November 27, Wilbourn appeared for his second guilty plea hearing. The district court asked Wilbourn questions to ensure he was pleading intelligently and voluntarily, including confirming he had a chance to review the additional discovery submitted. The prosecutor disclosed the terms of the plea agreement on the record:

The plea agreement is for Mr. Wilbourn to plead guilty to Count VII. That's the Class B possession with intent, methamphetamine, without the sentencing enhancement. It's a Class B felony. Also for him to plead to Count VIII. That's the D felony tax stamp. Those two are to be served consecutively for a total of 30 years, and in exchange for those pleas the State will dismiss the remaining counts of the Trial Information.¹

Wilbourn and his counsel agreed that was their understanding as well. The court reminded Wilbourn that "the plea agreement isn't necessarily binding on the Court," which Wilbourn stated he understood.

The district court next reviewed the consequences of Wilbourn's plea.

THE COURT: All right. I want to talk about the consequences of the offenses that you're pleading guilty to. [Possession of a controlled substance with intent to deliver], as we've mentioned earlier, Mr. Wilbourn, is a Class B felony. So that carries a maximum indeterminate prison sentence of 25 years and -- What was the plea agreement concerning the minimums that you're asking me to consider here ....

[THE PROSECUTOR]: My understanding is that the 25 years has a mandatory minimum of one-third. However, that can be further reduced by one-third upon a plea of guilty.

THE COURT: All right. So I wanted to make sure we're all on the same page here.

[DEFENSE COUNSEL]: That's our understanding, Your Honor.

THE COURT: You're not eligible for parole until you've served between one-half of one-third of the maximum indeterminate sentence and the maximum indeterminate sentence. They say that in a confusing way but basically one-third of the 25 years equals 8.3333 years, one-half -- one-half of 8.33 years is 4.167 years. So there's a mandatory minimum period of time that you would have to serve in prison before you would be eligible for parole.

The court then reviewed some additional consequences of the plea and asked the State if there were other consequences it should cover. The prosecutor said: "I'm looking at 901.10(2). My understanding is that the one-third could be reduced by up to one-third. I think you said one-half. Am I incorrect in that?" The court responded: "If I did, I misstated that. So that one-third could be reduced by an additional one-third, and I think that's the -- I think the provision that the parties have agreed to. So if I previously misstated it, that is a correct statement." The court accepted Wilbourn's plea. Wilbourn did not file a motion in arrest of judgment. The department of correctional services filed a presentence investigation (PSI) report.

On January 6, 2020, Wilbourn appeared for sentencing. The district court asked the prosecutor, defense counsel, and Wilbourn if they all had enough time to go through the PSI report, and all answered affirmatively. The court asked the defendant if he objected to the use of the PSI report for sentencing and he said he had no objections. No party presented any additional evidence, no victim-impact statements were read or presented, and Wilbourn made no statement in allocution.

The State presented the joint sentencing recommendation:

On the B felony possession with intent to deliver, that is a 25-year term of incarceration with a mandatory minimum of one-third to be served. Due to Mr. Wilbourn's acceptance of responsibility, his guilty plea, the parties agree to recommend a reduction of that mandatory minimum by an additional one-third of that one-third.

The State informed the court that the parties agreed to the five-year term of incarceration for the failure to affix a drug tax stamp, to be served consecutively. In sum, "25 years on the B felony, five on the D, consecutive to each other, agree to a reduction of one-third of that mandatory minimum on the B felony." Defense counsel stated the State complied with the plea agreement and agreed with the recommendation. Defense counsel added, "I believe the one-third additional reduction is under nine -- 901.10 if the court wanted that." Neither the court nor any party specifically mentioned Iowa Code section 124.413(3).

The court found Wilbourn guilty of each charge and sentenced Wilbourn as follows:

I have considered all the sentencing options that are provided for in chapters 901 and 907 of the Iowa code, and my judgment -- and my judgment relative to sentence is based on that which will provide you the maximum opportunity to rehabilitate yourself while at the same time protecting the community from further offenses by you or others who are similarly situated, Mr. [W]ilbourn.

I've considered your age, your education, your prior criminal history, your prior employment circumstances, your family circumstances. I've considered the nature of the offenses committed that you pled guilty for, the underlying facts that provided a basis for those two charges that you entered guilty pleas for. I've considered the need for community protection. I've considered the recommendation and the information -- the relevant and material information set forth in the

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