IN THE COURT OF APPEALS OF IOWA
No. 13-1260
Filed May 14, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EMMANUEL J. BERRYMAN,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Mark R. Fowler,
District Associate Judge.
Defendant appeals his sentencing for domestic abuse assault resulting in
bodily injury and petitions for a writ of certiorari for his contempt punishment.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Trout, Assistant Attorney
General, Michael J. Walton, County Attorney, and Amy Devine and Steve Berger,
Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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MULLINS, J.
Emmanuel J. Berryman appeals a sentence of ninety days in jail for
domestic abuse assault resulting in bodily injury and a fifty-day term of
incarceration for contempt. Berryman argues the district court erred in failing to
provide specific reasons for ordering consecutive sentences. We affirm
Berryman’s sentence on the criminal conviction and annul the writ challenging his
term of incarceration for contempt.
I. BACKGROUND FACTS AND PROCEEDINGS.
In February 2013, a criminal complaint was filed against Emmanuel
Berryman alleging he committed domestic abuse assault resulting in bodily
injury. On the same day, a no contact order was entered restraining Berryman
from any contact with the victim. The State filed a trial information in March,
charging Berryman with domestic abuse assault resulting in bodily injury and
domestic abuse assault by strangulation. In June, the State filed a complaint
alleging Berryman violated the no-contact order.
At the July plea and sentencing hearing, Berryman stipulated he violated
the no-contact order and entered a guilty plea to the domestic abuse assault
resulting in bodily injury charge, pursuant to a comprehensive plea agreement.
The State agreed to dismiss the charge of domestic abuse assault by
strangulation. The State recommended a ninety-day jail term for contempt, as
punishment for Berryman’s violation of the no-contact order, and a ninety-day jail
term for domestic abuse assault resulting in bodily injury. The State argued the
jail terms should run consecutively, while Berryman argued the jail terms should
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be concurrent. After accepting Berryman’s guilty plea to the charge of domestic
abuse assault resulting in bodily injury, the district court sentenced Berryman to a
ninety-day jail term for domestic abuse assault resulting in bodily injury and
imposed a fifty-day jail term for contempt. The court ordered the jail terms be run
consecutively and dismissed the charge for domestic abuse assault by
strangulation. Berryman filed a timely notice of appeal of the sentences in
August 2013.
II. PRESERVATION OF ERROR.
Berryman timely filed a notice of appeal for his sentence for domestic
abuse assault resulting in injury. However, a defendant punished for contempt
has no right to appeal. Iowa Code § 665.11 (2013). A defendant may challenge
a finding of contempt by filing a writ of certiorari. Id. Berryman requests his
notice of appeal be treated as a petition for writ of certiorari to the extent his
appeal challenges his punishment for contempt. The State argues the appeal
should not be considered because Berryman failed to petition for writ of certiorari.
Iowa Rule of Appellate Procedure 6.108 states that if “the appellate court
determines another form of review was the proper one, the case shall not be
dismissed, but shall proceed as though the proper form of review had been
requested.” We grant Berryman’s request and will treat this appeal as a writ of
certiorari to the extent it challenges Berryman’s punishment for contempt.
III. STANDARD OF REVIEW.
We review sentencing decisions for correction of errors at law. State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002). When a sentence does not fall
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outside statutory limits, we will overturn the sentence only “for an abuse of
discretion or the consideration of inappropriate factors.” Id. Punishment for
contempt requires interpretation of a statute; thus our review is for correction of
errors of law. State v. Mott, 731 N.W.2d 392, 394 (Iowa 2007).
IV. ANALYSIS.
A district court must give reasons for “selecting a particular sentence” and
“its decision to impose consecutive sentences.” State v. Jacobs, 607 N.W.2d
679, 690 (Iowa 2000). The district court here did state on the record reasons for
imposing the sentence but did not specify why it imposed a “consecutive
sentence.” Berryman argues the district court erred by not giving sufficient
reasons for imposing a consecutive sentence. The State argues the district court
did not impose consecutive sentences but instead imposed one sentence for
domestic abuse assault resulting in injury and one punishment for contempt.
Because only one jail term was a sentence, the district court did not err by not
giving reasons for ordering the jail terms to run consecutively.
The Iowa Supreme Court held in Mott that a term of incarceration for
contempt is not a sentence but a punishment. 731 N.W.2d at 394. Contempt is
not a criminal offense but is the way in which a court may punish certain actions
by a defendant. Id.; see also Iowa Code § 665.2 (providing which acts constitute
contempt); Iowa Code § 664A.7 (providing that a violation of a no-contact order is
“punishable by summary contempt proceedings”). The Mott court held that a
sentence for assault and a punishment for contempt did not constitute
“consecutive sentences” under Iowa Code section 901.8, even when the
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defendant was given two terms of incarceration. 731 N.W.2d at 394. Instead,
the two terms of incarceration are isolated from one another, even if one begins
immediately after the first ends. See id.
Berryman relies upon section 901.5(9)(c), which requires the district court
to announce “[i]n the case of multiple sentences, whether the sentences shall be
served consecutively or concurrently.” This code section does not apply to
Berryman because he was not given “multiple sentences”—he was given one
sentence for a criminal offense and one punishment of incarceration for
contempt. It necessarily follows from Mott that since Berryman was sentenced to
jail for domestic abuse assault resulting in injury and also punished for contempt
by a term of incarceration, then Berryman’s terms of incarceration are not
“consecutive sentences.” See id. Because Berryman was not sentenced to
“consecutive sentences,” the district court was not required to give specific
reasons for ordering Berryman to serve two terms of incarceration, one beginning
after the other ends. Berryman’s sentence is there affirmed, and the writ
challenging the punishment for contempt is annulled.
AFFIRMED; WRIT ANNULLEED.