IN THE SUPREME COURT OF IOWA
No. 13-1764
Filed December 12, 2014
Amended February 24, 2015
STATE OF IOWA,
Appellee,
vs.
MARK AARON THOMPSON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Carol L.
Coppola (plea), District Associate Judge, and Odell G. McGhee II,
(sentencing), District Associate Judge.
A defendant seeks further review of an opinion affirming his
sentence. DECISION OF COURT OF APPEALS AFFIRMED IN PART
AND VACATED IN PART; DISTRICT COURT SENTENCE VACATED
AND CASE REMANDED WITH INSTRUCTIONS.
Benjamin D. Bergmann of Parrish, Kruidenier, Dunn, Boles,
Gribble & Gentry, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant
Attorney General, John P. Sarcone, County Attorney, and Andrea M.
Petrovich, Assistant County Attorney, for appellee.
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WIGGINS, Justice.
The defendant entered into a plea agreement with the State and
proceeded to plead guilty to possession of a controlled substance. The
court accepted his plea and set sentencing for a later date. At the time of
sentencing, the court did not follow the recommendations in the plea
agreement.
The defendant waived reporting of the sentencing hearing. The
court failed to give its reason for the defendant’s sentence in the written
sentencing order. The defendant appealed. We transferred the case to
the court of appeals. The court of appeals relied on State v. Mudra, 532
N.W.2d 765 (Iowa 1995), and State v. Alloway, 707 N.W.2d 582 (Iowa
2006), overruled on other grounds by State v. Johnson, 784 N.W.2d 192,
197–98 (Iowa 2010). It affirmed the sentence, holding the defendant
waived his appeal rights as to his sentence. The court of appeals also
held language in defendant’s petition to plead guilty did not require the
court to allow the defendant to withdraw his plea and therefore complied
with Iowa Rule of Criminal Procedure 2.10.
On further review, we overrule our decisions in Mudra and Alloway
and hold a judge must give his or her reasons for the defendant’s
sentence either on the record at a hearing or in the written sentencing
order. From this time forward, a defendant does not waive his or her
right to an appeal when the defendant waives reporting of the sentencing
hearing and the judge fails to include his or her reasons for the sentence
in the sentencing order. Additionally, we hold because the plea
agreement was not conditioned on the concurrence of the district court,
the court did not err in deviating from the plea agreement. Accordingly,
we affirm in part and vacate in part the decision of the court of appeals,
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vacate the defendant’s sentence, and remand the case to the district
court for further proceedings consistent with this opinion.
I. Background Facts and Proceedings.
On August 19, 2013, the State charged Mark Thompson with
possession of a controlled substance in violation of Iowa Code section
124.401(5) (2013). The State offered Thompson a plea deal and filed it
with the district court. In exchange for a guilty plea to the offense
originally charged, the State agreed to recommend a sentence of sixty
days incarceration, a $625 fine, and no probation. Thompson accepted
the plea offer. On October 10, he filed a petition to plead guilty.
Thompson’s petition stated the plea agreement stipulated the State
wanted sixty days in jail with no probation, but Thompson was free to
argue for less jail time at sentencing. On the same day, the district court
entered an order accepting the plea and set Thompson’s sentencing
hearing.
On October 31, the district court sentenced Thompson. The only
record of the sentencing is a sentencing-order form filled out in pen by
the judge. The form indicates Thompson waived reporting of the
sentencing hearing. The form also indicates the district court deviated
from the recommended sentence in the plea agreement. The district
court sentenced Thompson to two years of incarceration with all but
fifteen days of the sentence suspended and placed Thompson on
probation for two years. 1 The court gave Thompson two days’ credit for
time served.
The sentencing-order form does not indicate the judge imposed a
1
fine. The plea agreement stated the fine would be $625, which is the
minimum fine for the charge.
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However, the district court did not fill out the section of the
sentencing-order form regarding reasons for the court’s sentence, which
required the judge to check one or more boxes that the judge found
consistent with the reasons for the chosen sentence. This section of the
form reads as follows:
On inquiry, no legal cause has been shown to prevent
sentencing on this date. Defendant was given an
opportunity to speak in mitigation of the sentence. The
following sentence is based on all the available
SENTENCING CONSIDERATIONS set out in Iowa Code
Section 907.5. The court finds the following factors the most
significant in determining this particular sentence:
The nature and circumstances of the crime
Protection of the public from further offenses
Defendant’s criminal history
Defendant’s substance abuse history
Defendant’s propensity for further criminal acts
Statutory sentence requirements
Defendant’s statement
Defendant’s mental health history
Defendant’s family circumstances
Maximum opportunity for rehabilitation
Victim impact statement
Defendant’s age and character
Defendant’s employment
The Plea Agreement
___________ [(left blank for the judge to fill in a reason)]
On November 7, Thompson filed a notice of appeal, arguing the
district court erred by failing to state on the record the reasons for the
sentence imposed and that the district court improperly deviated from
the sentence agreed upon in the plea agreement. We transferred the
case to the court of appeals. The court of appeals affirmed the sentence
because under current caselaw, Thompson “waived his appellate claim
that the court violated Iowa Rule of Criminal Procedure 2.23(3)(d)” by
failing to provide a record the court could rely upon to determine if an
abuse of discretion occurred. Thompson then filed this application for
further review, which we granted.
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II. Issues.
The first issue we must decide is whether a defendant who waives
reporting of sentencing and fails to provide a recreated record under Iowa
Rule of Appellate Procedure 6.806(1) or Iowa Rule of Criminal Procedure
2.25(1) waives error when the sentencing judge fails to indicate on the
written record the reasons for the sentence imposed. We must also
decide whether the district court erred by failing to impose the sentence
agreed upon in the plea agreement.
III. Scope of Review.
We will reverse a decision of the district court when an abuse of
discretion occurs or there is some defect in the sentencing procedure.
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). When the district
court exercises its discretion on grounds or for reasons that were clearly
untenable or unreasonable, an abuse of discretion occurs. Id. We review
the court’s determination to accept or reject a plea agreement for abuse
of discretion. State v. Barker, 476 N.W.2d 624, 628 (Iowa Ct. App. 1991).
IV. Appellate Review of a Sentence When the Defendant
Waives Reporting of the Sentencing Hearing and the District Court
Fails to Provide a Reason for the Sentence in the Written Record.
The Iowa Rules of Criminal Procedure state a “court shall state on
the record its reason for selecting the particular sentence” it imposes on
the defendant. Iowa R. Crim. P. 2.23(3)(d). This requirement ensures
defendants are well aware of the consequences of their criminal actions.
See State v. Lumadue, 622 N.W.2d 302, 305 (Iowa 2001). Most
importantly, the sentence statement affords our appellate courts the
opportunity to review the discretion of the sentencing court. See
Alloway, 707 N.W.2d at 584 (“When a court is given discretion in
sentencing, a statement of the reasons for the sentence is necessary to
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allow appellate courts to determine if the discretion in imposing one form
of sentence over another form was abused.”). The district court can
satisfy this requirement by orally stating the reasons on the record or
placing the reasons in the written sentencing order. See Lumadue, 622
N.W.2d at 304–05.
In State v. Luedtke, the district court failed to state a reason for the
sentence imposed following the defendant’s guilty plea. 279 N.W.2d 7, 8
(Iowa 1979). In Luedtke we stated,
(w)ithout question, articulation of the rationale undergirding
a sentence would assist both trial court and the appellate
court on review. The view that such a record is desirable
has now been embodied in a rule which we view as
mandatory. Iowa R. Crim. P. [2.23(3)(d)] now provides that
“(t)he court shall state on the record its reason for selecting
the particular sentence.”
Id. (internal quotation marks omitted). The court remanded the case for
resentencing. Id. at 9.
In State v. Pierce, the defendant argued the district court’s failure
to state a reason on the record for the sentence imposed was error. 287
N.W.2d 570, 572 (Iowa 1980). We remanded the case for resentencing
based upon the district court’s failure to provide reasons for the
sentences on the record. Id. at 575. We came to the same result in State
v. Marti, 290 N.W.2d 570, 589 (Iowa 1980).
We have also held when discretion is not at issue, the district court
should state the fact that it lacks discretion for the sentence imposed on
the record. State v. Matlock, 304 N.W.2d 226, 228 (Iowa 1981) (“Trial
courts should comply with rule [2.23(3)(d)] and state the reason for the
sentence in every case. If the court has no discretion in sentencing, it
should so state.”). Our rationale for this requirement was that there
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were practical reasons for the sentencing statement even when the
district court lacks discretion. Id. There we said:
Other practical considerations in requiring a statement of
reasons are as follows: a good sentence is one which can
reasonably be explained; knowing why the court imposed a
particular sentence is of value to corrections authorities; and
the explanation has a possible therapeutic effect on a
defendant, although this latter consideration has been
questioned.
Id.
Applying these principles, the court of appeals remanded a case for
resentencing where there was no transcript of the sentencing hearing
and the sentencing order indicated the sentencing court considered “the
circumstances of the offense and the defendant’s background,” when it
pronounced its sentence. State v. Cooper, 403 N.W.2d 800, 802 (Iowa Ct.
App. 1987). In reaching its conclusion, the court of appeals said “[t]he
present record, far from articulating the rationale behind the court’s
choice of sentence, states only generalized, vague considerations which
we may assume advise every court in making every sentencing decision.”
Id. The court of appeals aptly noted:
First of all, we think that implicit in rule [2.23(3)(d)] is a
determination that appellate courts should not be forced to
rely on post hoc attempts at divining the district court’s
motivation from the entirety of the record in order to
determine if the district court abused its discretion. To
answer the abuse of discretion question, an appellate court
needs to know why a trial court acted in the way that it did,
not why it might have done so.
Id. (citation omitted).
Subsequent to Cooper, we did not overrule Luedtke and its
progeny, but added a new wrinkle to the issue. In Mudra, the defendant
pled guilty to domestic abuse and waived reporting of the sentencing
hearing. 532 N.W.2d at 766–67. We recognized we would not be able to
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make a determination of an abuse of discretion on the written record
provided and then found the lack of the reasons on the record was the
defendant’s fault for waiving the reporting of the sentencing proceedings.
Id. at 767. We failed to consider the mandatory nature of rule 2.23(3)(d)
and even the rule itself, but rather stated, “We believe, and strongly
advise, that the better practice for a district court in situations where
there is no transcription of the proceedings is to always state sufficient
reasons in the sentencing order.” Id. We then held the defendant waived
error by waiving reporting of the hearing and affirmed the sentence even
though we did not know if the district court gave reasons for its
sentence. See id.
Ten years later, we affirmed Mudra. See Alloway, 707 N.W.2d at
585–86. There we said if the defendant waives reporting of the
sentencing hearing, the defendant can still establish a record on appeal
by means of a bill of exceptions as authorized by rule of criminal
procedure 2.25 or by filing a supplemental statement of the record
pursuant to rule of appellate procedure 6.10(3). Id. at 586. We again
urged our district courts to fastidiously give reasons for their sentences.
Id. at 587.
Thompson urges us to enforce rule 2.23(3)(d) and remand the case
for resentencing because the district court did not give reasons for its
sentence in the written sentencing order. To do so requires us to
overrule Mudra and Alloway because Thompson waived the reporting of
his sentencing hearing.
We “recognize that the principle of stare decisis demands that we
respect prior precedent and that we do not overturn them merely
because we might have come to a different conclusion.” State v. Bruce,
795 N.W.2d 1, 3 (Iowa 2011). However, we must revisit our prior
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decisions if those decisions are flawed and incompatible with present
conditions. Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 117, 121
(Iowa 1973). Our rules state a judge shall state reasons, not that the
defendant shall request reasons. Iowa R. Crim. P. 2.23(3)(d). Further, it
is possible the defendant will not know the judge has failed to complete
the written sentencing order with reasons for the sentence at the time of
sentencing, while the judge is well aware the defendant has waived
reporting of the hearing. We want to reiterate:
We recognize the time pressures facing busy judges in a
high-volume court. But defendants are not fungible
commodities. They are entitled to be informed, preferably
face-to-face, about the consequences of their criminal acts.
Rule [2.23(3)(d)] and our prior cases require as much. The
integrity of our system of justice demands it.
Lumadue, 622 N.W.2d at 305.
We think the sounder interpretation of rule 2.23(3)(d) requires the
judge to include in his or her sentencing order the reason for the
sentence when the defendant waives the reporting of the sentencing
hearing. In this age of word processing, judges can use forms, such as
the one available in this case, to check the boxes indicating the reasons
why a judge is imposing a certain sentence. If the choices in the order
need further explanation, the judge can do so by writing on the order or
adding to the order using a word processing program. If the sentencing
order does not have boxes similar to the ones in this case, the judge can
use his or her word processor to insert the reasons for a particular
sentence.
For these reasons, we overrule Mudra, Alloway, and the criminal
cases relying on these cases holding the defendant waives his or her right
to appeal a particular sentence when the defendant waives reporting of
the sentencing and the court fails to put reasons for the sentence in the
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written sentencing order. We also hold if the defendant waives reporting
of the sentencing hearing and the court fails to state its reasons for the
sentence in the written sentencing order, the court has abused its
discretion, and we will vacate the sentence and remand the case for
resentencing. See Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind.)
(“One way in which a trial court may abuse its discretion is failing to
enter a sentencing statement at all.”), decision clarified on other grounds
on reh’g, 875 N.E.2d 218 (Ind. 2007).
Accordingly, we must vacate Thompson’s sentence and remand the
case for resentencing. The rule of law announced in this case overruling
Mudra and Alloway shall be applicable to the present case, those cases
not finally resolved on direct appeal in which the defendant has raised
the issue, and all future cases.
V. Whether the District Court Erred by Imposing a Greater
Sentence than Agreed to in the Plea Agreement.
A. Error Preservation. The State contends Thompson waived his
right to attack his guilty plea because he failed to file a motion in arrest
of judgment after the court advised him of his right to do so. We
disagree.
Our rules provide:
A motion in arrest of judgment is an application by the
defendant that no judgment be rendered on a finding, plea,
or verdict of guilty. Such motion shall be granted when
upon the whole record no legal judgment can be
pronounced.
Iowa R. Crim. P. 2.24(3)(a). A defendant must file a motion in arrest of
judgment not later than forty-five days after the defendant’s plea, “but in
any case not later than five days before the date set for pronouncing
judgment.” Id. r. 2.24(3)(b). Generally, if the defendant fails to file a
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motion in arrest of judgment, the defendant waives his right to challenge
the guilty plea on appeal. Id. r. 2.24(3)(a). One of the purposes of a
motion in arrest of judgment is to allow the defendant to challenge the
guilty plea proceeding prior to sentencing. State v. Birch, 306 N.W.2d
781, 783 (Iowa 1981).
The rule has no applicability to a situation, as in this case, where
the defendant does not know the deficiency in the plea proceeding until
after sentencing. Prior to sentencing, the court did not tell Thompson
that it was going to or not going to accept the plea agreement filed with
the court. Factually, it was not until the actual sentence that Thompson
became aware the court was not going to abide by the plea agreement.
Up to that time, Thompson had no grounds to challenge the plea
proceeding in district court. Consequently, Thompson can raise this
issue on appeal without first filing a motion in arrest of judgment.
B. Analysis. The rules of criminal procedure state:
If a plea agreement has been reached by the parties the
court shall require the disclosure of the agreement in open
court at the time the plea is offered. Thereupon, if the
agreement is conditioned upon concurrence of the court in
the charging or sentencing concession made by the
prosecuting attorney, the court may accept or reject the
agreement, or may defer its decision as to acceptance or
rejection until receipt of a presentence report.
Iowa R. Crim. P. 2.10(2).
The rules also state:
When the plea agreement is conditioned upon the court’s
concurrence, and the court accepts the plea agreement, the
court shall inform the defendant that it will embody in the
judgment and sentence the disposition provided for in the
plea agreement or another disposition more favorable to the
defendant than that provided for in the plea agreement.
Id. r. 2.10(3).
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Here the plea agreement was that the State would recommend a
certain sentence upon Thompson’s plea of guilty. Nowhere in the plea
agreement did it state the agreement required the district court’s
concurrence. Factually, Thompson was aware the agreement did not
have the district court’s concurrence when he signed the petition to plead
guilty and acknowledged “[t]he court is not bound by the agreement and
may impose the maximum sentence as required by law.”
Accordingly, neither the district court nor the State violated the
plea agreement requiring the court to allow Thompson the opportunity to
withdraw his plea before sentencing.
VI. Disposition.
For the reasons stated in this opinion, we affirm in part and vacate
in part the decision of the court of appeals, vacate Thompson’s sentence,
and remand the case to the district court for resentencing. Costs shall
be assessed to the State.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT SENTENCE VACATED AND
CASE REMANDED WITH INSTRUCTIONS.