IN THE COURT OF APPEALS OF IOWA
No. 18-0023
Filed December 19, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EVAN BLAKE WOOTEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Joel W. Barrows,
Judge.
The defendant challenges his sentences for attempt to disarm a peace
officer of a dangerous weapon and assault on persons engaged in certain
occupations. SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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McDONALD, Judge.
Evan Wooten pleaded guilty to attempt to disarm a peace officer of a
dangerous weapon, in violation of Iowa Code section 708.13(2) (2016), and
assault on persons engaged in certain occupations, in violation of Iowa Code
section 708.3A(3). The district court sentenced Wooten to indeterminate terms of
incarceration not to exceed five years for the first offense and two years for the
second offense, said sentences to run concurrent to each other.
In this direct appeal, Wooten raises three challenges to his sentences. First,
he contends the district court erroneously concluded that attempt to disarm a
peace officer was a forcible felony requiring imprisonment. Second, Wooten
argues the district court considered an impermissible factor in imposing sentence.
Specifically, Wooten argues the district court impermissibly considered the
sentencing recommendation of the presentence investigation (PSI) report writer.
Third, Wooten argues the court erred in “ordering appellate attorney fees to be
assessed in their entirety unless [he] filed a request for hearing on the issue of his
reasonable ability to pay.”
I.
We first address Wooten’s claim that the district court erroneously
concluded that attempt to disarm a peace officer of a dangerous weapon was a
forcible felony. “A ‘forcible felony’ is any felonious child endangerment, assault,
murder, sexual abuse, kidnapping, robbery, human trafficking, arson in the first
degree, or burglary in the first degree.” Iowa Code § 702.11(1). The district court
may not defer judgment, defer sentence, or suspend sentence following conviction
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for a forcible felony. See Iowa Code § 907.3. In other words, a term of
incarceration is mandatory following conviction of a forcible felony.
The question of whether the offense was a forcible felony was briefed and
argued in the district court. The district court flagged the issue at the time of
Wooten’s guilty plea:
THE COURT: Right, and I want to discuss that a little bit. Mr.
Wooten, do you understand that it’s an open question as to whether
or not count 1 may be a forcible felony?
THE DEFENDANT: Yes, sir, I do.
THE COURT: Do you understand that if it’s a forcible felony,
incarceration would be mandatory on count 1?
THE DEFENDANT: Yes, sir.
THE COURT: All right. I’ve had some discussion with counsel
in chambers, and I think the agreement, counsel, was to leave this
issue for sentencing so that counsel could present argument to the
Court on whether or not this is a forcible felony. Is that correct?
MR. BERGER: That is correct, your Honor, from the State.
MR. DIRCKS: Yes, that is correct, your Honor.
THE COURT: But you understand, Mr. Wooten, that if the
court determines it’s a forcible felony, incarceration would be
mandatory on count 1. Do you understand that?
THE DEFENDANT: Yes, I do, sir.
THE COURT: Do you still wish to plead guilty?
THE DEFENDANT: Yes, sir.
At the time of sentencing, the parties submitted briefing and argument to
the district court on the question of whether attempt to disarm a peace officer of a
dangerous weapon was a forcible felony. After hearing argument, the district court
concluded the offense was a forcible felony. However, the district court explicitly
stated that it would have made the same sentencing decision even if it had reached
the opposite conclusion on the forcible-felony question:
The reasons for the sentence obviously include the fact that
the court’s determined that count 1 is a forcible felony, but the court
also notes that you have a significant criminal history, a significant
history of problems on supervision, including numerous failures to
appear. Although the court does note, on the other hand, that Mr.
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Wooten has appeared for everything in this case. The court is
concerned about protection of the community, and of course the
court took into account the recommendation of the PSI author, as
well. And the reason I note all of that is that the sentence in this case
would have been the same regardless of the court’s determination
that count 1 is a forcible felony.
Wooten contends the district court failed to consider other sentencing
alternatives because the court concluded the offense was a forcible felony.
Wooten requests his sentences be vacated and the matter be remanded for
resentencing. See State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999) (“When a
sentencing court has discretion, it must exercise that discretion. Failure to exercise
that discretion calls for a vacation of the sentence and a remand for resentencing.”
(citations omitted)); State v. Kramer, 773 N.W.2d 897, 898 (Iowa Ct. App. 2009)
(“Failing to exercise discretion in determining what sentence to impose when a
sentence is not mandatory is a defective sentencing procedure, which requires
vacation of the sentence and a remand for resentencing.”).
The State concedes the “district court erroneously concluded Wooten
committed a forcible felony requiring prison” but argues the error, if any, was
harmless and remand is unnecessary.
We conclude the error was harmless and remand is unnecessary. Under a
harmless-error analysis, we presume prejudice and reverse unless the record
affirmatively establishes the defendant suffered no prejudice. Here, the district
court explicitly stated it would have imposed the same sentence regardless of its
determination that attempt to disarm a police officer was a forcible felony. The
additional record made by the district court affirmatively establishes the defendant
suffered no prejudice and obviates the need for remand. See State v. Cason, 532
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N.W.2d 755, 757 (Iowa 1995) (holding any failure to formally afford defendant his
right to allocution was harmless where defendant “affirmatively stated [he] agreed
[with] the recommendation of sentence proposed by the State,” “[t]he trial court on
several occasions asked [defendant] whether he had any questions regarding his
plea agreement or the sentencing recommendations,” and defendant “had several
opportunities to state any objections to the proposed sentence”); State v. Mabry,
No. 14-1424, 2015 WL 4642483, at *1 (Iowa Ct. App. Aug. 5, 2015) (applying
harmless-error analysis to sentencing error); State v. James, No. 11-1207, 2012
WL 1612329, at *3 (Iowa Ct. App. May 9, 2012) (applying harmless-error analysis
to sentencing); see also Davis v. State, 617 So.2d 1140, 1141 (Fla. Dist. Ct. App.
1993) (per curiam) (holding remand was not necessary where the sentencing court
stated it “would have imposed the same sentence” even if not mandatory); Rubi v.
State, 575 S.E.2d 719, 724 (Ga. Ct. App. 2002) (holding error was harmless where
the district court stated it would have imposed the same sentence even without
considering improper factor); People v. Anderson, 825 N.W.2d 678, 687 (Mich. Ct.
App. 2012) (“If the trial court would have imposed the same sentence regardless
of a misunderstanding of the law, this [c]ourt may affirm.”); State v. Ortega-
Gonsalez, 404 P.3d 1081, 1084 (Or. Ct. App. 2017) (“We will affirm a judgment
even though we determine that the trial court erred in sentencing when the record
shows that the trial court could have imposed the same total sentence without the
error and we are ‘completely confident’ that the trial court would impose the same
sentence if the case were remanded for resentencing.” (quoting State v. Calderon-
Ortiz, 191 P.3d 808, 812 (Or. Ct. App. 2008)); State v. Binkerd, 310 P.3d 755, 764
(Utah Ct. App. 2013) (“The court explained, however, that had it correctly
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understood the statute at the time of sentencing, it would have imposed the same
sentence regardless—a sentiment that is entirely credible given the record before
us. Therefore, the error was harmless.”); State v. Weller, 344 P.3d 695, 705
(Wash. Ct. App. 2015) (stating the appellate court will affirm the sentence despite
error “when the trial court expressly states” the same sentence would have been
imposed).
II.
In his next claim of error, Wooten argues it was improper for the PSI report
to contain a sentencing recommendation. He also argues the district court erred
in considering the PSI report writer’s sentencing recommendation.
We first note the claim is not preserved for appellate review. Our courts
require that a defendant interpose an objection at the time of sentencing to
preserve error on a claim that the PSI report contains improper information. See,
e.g., State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 2000); State v. Witham, 583
N.W.2d 677, 678 (Iowa 1998); State v. Buck, No. 14-0723, 2015 WL 1046181, at
*2 (Iowa Ct. App. Mar. 11, 2015); State v. Thonethevaboth, No. 05-1821, 2006 WL
1751295, at *1 (Iowa Ct. App. June 28, 2006). Here, the presentence investigation
report contained the following recommendation: “Based on the nature of the
crimes to which the defendant has pled guilty, and has [sic] prior criminal record,
incarceration is recommended.” At the time of sentencing, the district court
afforded the defendant and defendant’s counsel the opportunity to object to
information contained in the PSI report, and the defendant failed to object to the
writer’s recommendation. Thus, error is not preserved.
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Wooten requests that we review the claim as a claim of ineffective
assistance of counsel. “[W]e review ineffective-assistance-of-counsel claims de
novo.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). To prevail on his
claim, Wooten must show by a preponderance of the evidence that his counsel
failed to perform an essential duty and prejudice resulted. See id. at 556.
Wooten argues counsel failed to perform an essential duty by failing to
object to the inclusion of the PSI writer’s opinion in the report. Wooten cites to
Iowa Code sections 901.2, prescribing the manner of completing the PSI, and
901.3, stating what the PSI must contain. He argues that neither section
authorizes the department of correctional services to include a sentencing
recommendation in the PSI report. According to Wooten, without express
instruction, the department of correctional services cannot provide a sentencing
recommendation. Wooten further argues that the district court is thus prohibited
from considering the writer’s sentencing recommendation.
The State argues counsel had no duty to object. The State notes the district
court can consider any information relevant to sentencing. The Iowa Code allows
for the district court to “receive . . . any information which may be . . . relevant to
the question of sentencing.” Iowa Code § 901.2(1). In addition to this statutory
authority, the State notes, “The sentencing judge should be in possession of the
fullest information possible concerning the defendant’s life and
characteristics . . . .” See State v. Stanley, 344 N.W.2d 564, 570 (Iowa Ct. App.
1983). A “judge may resort to such sources of information as he[/she] thinks might
be helpful to his[/her] judgment as to sentencing.” Id. The State argues the
department of correctional services’ recommendation for sentencing, based on the
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department’s understanding of the defendant’s needs and the services available
to meet those needs, is relevant to the question of sentencing. Because the
sentencing recommendation is relevant to sentencing, the State argues, counsel
had no duty to object.
We decline to address the claim on the merits. “Generally, ineffective
assistance of counsel claims are preserved for postconviction to allow trial counsel
an opportunity to defend the charge.” State v. Pearson, 547 N.W.2d 236, 241
(Iowa Ct. App. 1996). Here, the defendant’s counsel made a strong sentencing
recommendation to the court. It is long-standing practice for all PSI reports to
contain a sentencing recommendation. It is also long-standing practice for the
sentencing court to take into consideration the sentencing recommendation of the
department of correctional services. Given the long-standing practice, defendant’s
counsel should have the opportunity to make a record to defend against this claim
of ineffective assistance of counsel. We thus preserve the claim for postconviction-
relief proceedings.
III.
In his third claim, Wooten challenges the provision of the sentencing order
providing that he shall be responsible for appellate attorney fees unless he
requests a hearing on his reasonable ability to pay the same. Challenges to
restitution are reviewed for errors at law. State v. Coleman, 907 N.W.2d 124, 134
(Iowa 2018).
The challenged portion of the order provides as follows:
The defendant is advised that if he determines to appeal this
ruling, he may be entitled to court-appointed counsel to represent
him in an appeal. The defendant is advised that if he qualifies for
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court-appointed appellate counsel then he can be assessed the cost
of the court-appointed appellate attorney when a claim for such fees
is presented to the clerk of court following the appeal. The defendant
is further advised that he may request a hearing on his reasonable
ability to pay court-appointed appellate attorney fees within 30 days
of the issuance of the procedendo following the appeal. If the
defendant does not file a request for a hearing on the issue of his
reasonable ability to pay court-appointed appellate attorney fees, the
fees approved by the State Public Defender will be assessed in full
to the defendant.
We conclude this provision of the sentencing order was erroneous. The
district court can only order the defendant to repay court-appointed attorney fees
after making a finding the defendant has the reasonable ability to pay the same.
See Iowa Code § 910.2(1). In State v. Coleman, the defendant brought the same
challenge as Wooten does now. 907 N.W.2d at 148-49. The supreme court
vacated the defendant’s sentence on other grounds and did not reach the merits
of the issue. See id. at 149. However, the supreme court instructed the district
court on remand to “follow the law and determine the defendant’s reasonable
ability to pay the attorney fees without requiring him to affirmatively request a
hearing on his ability to pay” before assessing future attorney fees. Id. Given this
direction, it is apparent the supreme court would hold the challenged portion of the
sentencing order is erroneous. Cf. Goodrich v. State, 608 N.W.2d 774, 776 (Iowa
2000) (“Constitutionally, a court must determine a criminal defendant’s ability to
pay before entering an order requiring such defendant to pay criminal restitution.”).
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Accordingly, we vacate the portion of the sentencing order requiring Wooten
affirmatively request a hearing on his ability to pay and remand for entry of a
corrected sentencing order.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.