IN THE COURT OF APPEALS OF IOWA
No. 15-1467
Filed August 31, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DONALD GENE HALL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, James C.
Ellefson (plea) and Timothy J. Finn (sentencing), Judges.
A defendant appeals challenging the factual basis to support his guilty
plea and his sentence. AFFIRMED AND REMANDED.
Jennifer Bonzer of Johnson & Bonzer P.L.C., Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.
Following his guilty plea, Donald Hall was convicted of interference with
official acts while displaying a dangerous weapon, a class “D” felony, in violation
of Iowa Code section 719.1 (2013). He also entered written guilty pleas to
possession of marijuana, second offense, and prohibited acts, in violation of Iowa
Code sections 124.401(5) and 124.402. In this appeal he asserts his attorney
was ineffective in permitting him to plead guilty to interference with official acts
when the record lacked a factual basis to support the element that he displayed a
dangerous weapon. He also claims the court abused its discretion in sentencing
him by considering unproven and unprosecuted charges. Finally, he claims the
sentencing order for the possession of marijuana conviction contravened the oral
pronouncement of the sentence.
I. Factual Basis—Display a Dangerous Weapon.
During the plea hearing, when Hall refused to admit the elements of the
charge of interference with official acts, the guilty plea was converted into an
Alford1 plea, and Hall agreed the court could look to the minutes of evidence for
the factual basis to support the charge. Hall ultimately agreed that if the police
officers involved in his arrest testified as detailed in the minutes, the jury would
find the element of displaying of a dangerous weapon had been proved beyond a
reasonable doubt. On appeal, Hall asserts his attorney was ineffective in
permitting him to plead guilty when the minutes do not actually support a factual
1
See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime.”).
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basis for that element. See State v. Ortiz, 789 N.W.2d 761, 764–65 (Iowa 2010)
(“Defense counsel violates an essential duty when counsel permits defendant to
plead guilty and waive his right to file a motion in arrest of judgment when there
is no factual basis to support defendant’s guilty plea. Prejudice is presumed
under these circumstances.” (citations omitted)). In order to succeed on his
claim, Hall must prove the record in this case lacks a factual basis to support the
element that he displayed a dangerous weapon. See id. at 765. His challenge
has two parts: (1) whether he displayed the knife and (2) whether the knife was a
dangerous weapon.
The minutes provided Officer Eric Siemens would testify he was
dispatched to Hall’s home on the report of a disturbance with multiple people
yelling and multiple loud slamming noises. When Officer Siemens arrived on
scene, he could hear a male yelling and a female crying. The back door to the
residence appeared to have been kicked off its hinges and was lying against
debris inside the home. Fearing for the safety of the female crying inside the
home and having had previous experience with Hall, including interference,
assault, and narcotics, Officer Siemens entered the home without announcing his
presence, accompanied by Sergeant Tom Watson. Office Siemens followed the
sound to the bedroom, where Hall was sitting on the bed. Officer Siemens
announced his presence, and Hall grabbed a small plastic bag containing a white
substance and shoved it in his mouth. Hall then attempted to run towards a
sliding glass door, and Officer Siemens pinned him against the door and a
dresser, ordering him to spit out the narcotics. Hall was actively fighting against
Officer Siemens, and the two moved towards the bed with Officer Siemens
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pulling Hall to the ground. While Sergeant Watson attempted to secure Hall’s left
arm, Officer Siemens saw Hall’s right hand grab a green-handled, open pocket
knife from the bed. Officer Siemens secured Hall’s right wrist and removed the
knife. Hall continued to resist the officers’ attempts to remove the substance
from his mouth, and after multiple further attempts to secure Hall’s hands, Officer
Siemens deployed his taser twice, allowing the officers to place Hall in handcuffs.
Hall contends the knife he had in his hand did not meet the statutory
definition of a dangerous weapon because there was no information about the
length of the blade. See Iowa Code § 702.7 (defining a dangerous weapon to
include a “knife having a blade exceeding five inches in length”). However, an
instrument can also be a dangerous weapon when it is “actually used in such a
manner as to indicate that the defendant intends to inflict death or serious injury
upon the other, and which, when so used, is capable of inflicting death upon a
human being.” See id.; see also Ortiz, 789 N.W.2d at 765–67 (describing the
three statutory definitions of a dangerous weapon contained in section 702.7).
We conclude there is a factual basis to support the conclusion the pocket
knife here was a dangerous weapon because it was used in a manner to indicate
Hall’s intent to inflict death or serious injury and the knife was capable of inflicting
death upon a human. While Hall was attempting to swallow what appeared to be
drugs and the police were attempting to stop him from doing so, a struggle
ensued. During the struggle, Hall grabbed an open pocket knife. Based on the
evidence in the minutes, it is clear that Hall intended to use the knife against the
officers and thereby free himself and escape custody. We conclude a factual
basis supports the conclusion the knife was a dangerous weapon.
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Hall also challenges the factual basis to support the conclusion he
“displayed” the knife. Hall claims that the State wants to exchange the word
“display” for “possess” and the minutes only support the conclusion he
possessed the knife. Hall asserts Officer Siemens stopped him from “displaying”
the knife when the officer removed it from his hand. There is no definition of
display in the statute and neither party, nor this court, has found any Iowa cases
interpreting the word “display” within the context of section 719.1. While we
agree display means something more than possess, we conclude the minutes of
testimony support the conclusion Hall “displayed” the knife.
Display is defined in the dictionary to include “exhibit to the sight or mind:
give evidence of: show, manifest, disclose.” Display, Webster’s Third New
International Dictionary Unabridged (unabr. ed. 2002); see State v. Gonzalez,
718 N.W.2d 304, 308 (Iowa 2006) (“We may consult a dictionary in order to
determine the ordinary meanings of words used by the legislature.”). Based on
this definition of display, we conclude Hall “displayed” the open pocket knife
because he exhibited the knife to the sight of Officer Siemens. He did more than
possess the knife; Hall held the knife in a manner so that it could be seen by
others. By placing the knife in his hand during the struggle where Officer
Siemens could view it, Hall displayed the knife.
Because there is a factual basis in the minutes of evidence to support both
the conclusion Hall’s knife was a dangerous weapon and that he displayed the
knife, we conclude Hall’s attorney was not ineffective in failing to challenge the
guilty plea through a motion in arrest of judgment. See State v. Brubaker, 805
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N.W.2d 164, 171 (Iowa 2011) (“We will not find counsel incompetent for failing to
pursue a meritless issue.”).
II. Sentence—Unproven Charges.
Next, Hall contends the district court abused its discretion in sentencing
him because the court considered unproved and unprosecuted offenses. During
sentencing, the court referred to Hall’s two-page criminal history listed in the
presentence investigation (PSI) report. Hall notes the PSI included in those two
pages some charges that were still pending and the offenses for which Hall was
being sentenced.
We review a district court’s sentencing decision for an abuse of discretion.
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “It is a well-established rule
that a sentencing court may not rely upon additional, unproven, and
unprosecuted charges unless the defendant admits to the charges or there are
facts presented to show the defendant committed the offenses.” Id. at 725. A
remand for resentencing is necessary if the court improperly considers unproven
or unprosecuted charges. Id. However, a sentence that is within the statutory
limits “is cloaked with a strong presumption in its favor.” State v. Washington,
832 N.W.2d 650, 660 (Iowa 2013). “To overcome the presumption, a defendant
must affirmatively show that the district court relied on improper evidence such
as unproven offenses.” State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).
Based on the record, we conclude Hall has fallen short of affirmatively
showing the court relied on the pending, unproven charges during sentencing.
The court, in referencing Hall’s criminal history as reported by the PSI, stated,
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As I look over your two to two and a half pages depending
on—I guess it’s just two pages of criminal record, starting with the
adult history on October 14 of 2003, running through and including
some of these matters being before the court today, I see a certain
trend.
One is that many of them are drug-related. Some of them
are interference with official acts. In fact, you’ve got at least two of
those.
And it’s been going on for since at least 2003, I guess from
2003 to the present time.
Contained within the two pages of the PSI’s criminal history section were at least
five prior convictions for drug-related offenses and three prior convictions for
interference with official acts. Thus, in referencing the drug-related convictions
and the interference convictions, the court was not necessarily referring to
unproven or unprosecuted offenses but offenses for which Hall had been
previously convicted. While the district court did not follow the parties’ joint
sentencing recommendation or the sentencing recommendation of the PSI, we
discern no abuse of discretion in its sentencing decision.
III. Sentence—Suspension.
Finally, Hall claims the court erred in the written sentencing order. During
the sentencing hearing, the court accepted the joint sentencing recommendation
with regard to the possession-of-marijuana conviction. That sentencing
recommendation was for a suspended one-year jail term, to be served
concurrently to the five-year sentence on the interference conviction. However,
the sentencing order provided the one-year term was not suspended but
imposed. The State concedes error on this point.
“A rule of nearly universal application is that ‘where there is a discrepancy
between the oral pronouncement of sentence and the written judgment and
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commitment, the oral pronouncement of sentence controls.’” State v. Hess, 533
N.W.2d 525, 528 (Iowa 1995) (citation omitted). Thus, this case must be
remanded to the district court for the issuance of a nunc pro tunc order to correct
the clerical error in the judgment entry and make the record reflect the court’s
pronouncement that Hall’s one-year jail term for the possession conviction is
suspended. See id. at 527. (“[W]hen a judgment entry incorrectly differs from the
oral rendition of the judgment merely as a result of clerical error, the trial court
holds the inherent power to correct the judgment entry so that it will reflect the
actual pronouncement of the court. The district court may correct a clerical error
in a judgment entry through issuance of a nunc pro tunc order.” (citations
omitted)).
IV. Conclusion.
We affirm Hall’s conviction as we conclude a factual basis supports his
guilty plea. We also conclude the court did not abuse its discretion in sentencing
Hall. However, the case must be remanded to the district court for the issuance
of a nunc pro tunc order so that the sentencing order for the possession
conviction can be corrected to reflect the oral pronouncement of the sentence.
AFFIRMED AND REMANDED.