IN THE SUPREME COURT OF IOWA
No. 19–2112
Submitted September 16, 2021—Filed October 22, 2021
STATE OF IOWA,
Appellee,
vs.
JAMES PAUL VANDERMARK,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, William P. Kelly,
Judge.
The defendant appeals from his conviction of willful injury causing bodily
injury, claiming the district court impermissibly permitted the State to amend
the trial information filed against him. DECISION OF COURT OF APPEALS
AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT
REVERSED, SENTENCE VACATED, AND REMANDED.
McDonald, J., delivered the opinion of the court, in which Appel, Oxley,
and McDermott, JJ., joined. Mansfield, J., filed a dissenting opinion, in which
Christensen, C.J., and Waterman, J., joined.
2
Daniel M. Northfield, Urbandale, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
3
McDONALD, Justice.
This court has taken a “relatively narrow view” of the circumstances under
which the state may amend a trial information. State v. Sharpe, 304 N.W.2d 220,
222 (Iowa 1981). The district court “may” allow an amendment to correct “errors
or omissions” in a trial information. Iowa R. Crim. P. 2.4(8)(a); see State v.
Maghee, 573 N.W.2d 1, 5 (Iowa 1997).1 However, “[a]mendment is not allowed”
if the amendment charges a “wholly new and different offense” or if it prejudices
the “substantial rights of the defendant.” Iowa R. Crim. P. 2.4(8)(a). The question
presented in this appeal is whether the district court erred in deviating from the
relatively narrow view in allowing the State to amend a charge of assault causing
bodily injury to a charge of willful injury causing bodily injury.
I.
The offense conduct is largely undisputed. On April 10, 2019, Edgar
Rodriguez and his spouse were seated in a hospital waiting room with their son
to see a doctor. The defendant, James Vandermark, entered the waiting room,
approached Rodriguez, punched Rodriguez in the face and head between seven
and ten times, and then turned and left the hospital. Rodriguez was left with
marks to his face and head, including a black eye. Rodriguez testified he still
feels that his nose is crooked.
The State charged Vandermark with assault causing bodily injury, a
serious misdemeanor, in violation of Iowa Code section 708.2(2) (2019),
1Although the rule refers solely to indictments, it is equally applicable to trial
informations. Iowa R. Crim. P. 2.5(5); State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013).
4
punishable by a term of incarceration not to exceed one year. One week prior to
trial, the State moved to amend the trial information to charge Vandermark with
willful injury causing bodily injury, a class “D” felony, in violation of Iowa Code
section 708.4(2), punishable by a term of incarceration not to exceed five years.
At the same time, the State provided notice it would seek a habitual offender
enhancement pursuant to Iowa Code section 902.8, enhancing the punishment
for the felony offense to an indeterminate term of incarceration not to exceed
fifteen years with a mandatory minimum sentence of three years.
The motion to amend was argued and decided on the day of trial. The State
argued the amended charge was not wholly new and different because it arose
out of the same facts noticed in the minutes of testimony. On the same basis,
the State argued Vandermark would not suffer any prejudice as a result of
allowing the amendment. Vandermark contended the amended charge was
wholly new and different because it increased the potential punishment and
required proof of different elements. The district court agreed with the State,
concluding that the amendment should be allowed because the amended charge
included additional elements that made the State’s case more difficult to prove,
the elements were “substantially similar,” and the underlying facts (such as the
date, time, place, defendant, and victim) remained the same. The district court
also denied Vandermark’s motion to continue trial to prepare a defense against
the new charge.
The case proceeded to trial, and the jury found Vandermark guilty of willful
injury causing bodily injury. After the verdict, Vandermark waived his right to
5
trial on the habitual offender enhancement. Subsequent to the jury’s verdict but
prior to sentencing, Vandermark was convicted of misdemeanor assault and
harassment in two unrelated cases. At a combined sentencing hearing for all
three convictions, the district court imposed the fifteen-year sentence for the
conviction of willful injury causing bodily injury, said sentence to run
consecutive to one of the misdemeanor sentences and concurrent to the other.
Vandermark timely appealed, and we transferred the matter to the court
of appeals. On appeal, Vandermark argued there was insufficient evidence to
support his conviction for willful injury, the district court erred in granting the
State’s motion to amend the trial information, the district court abused its
discretion in denying him a continuance to prepare his defense against the new
charge, and the district court abused its discretion in imposing sentence.
The court of appeals affirmed Vandermark’s conviction and sentence. The
court of appeals held there was sufficient evidence to support the jury’s verdict.
With respect to the motion to amend, the court of appeals affirmed the decision
of the district court. Relying on State v. Brisco, 816 N.W.2d 415 (Iowa Ct. App.
2012), the court of appeals reasoned the amended charge of willful injury was
not wholly new and different from the original assault charge because the
“amended charge referenced the same time, date, place, and alleged actions, was
within the same assault classification, did not involve additional witnesses, and
was supported by the original minutes of testimony.” The court of appeals
reasoned Vandermark did not suffer any prejudice because he was offered the
opportunity to plead guilty without the habitual offender enhancement prior to
6
trial and because he did not assert the amendment forced any change in his trial
strategy. The court of appeals held the district court did not abuse its discretion
in denying Vandermark’s motion to continue trial. Finally, the court of appeals
held the district court did not abuse its sentencing discretion.
We granted Vandermark’s application for further review. “On further
review, we have the discretion to review any issue raised on appeal.” Burton v.
Hilltop Care Ctr., 813 N.W.2d 250, 255 (Iowa 2012) (quoting State v. Marin, 788
N.W.2d 833, 836 (Iowa 2010), overruled on other grounds by Alcala v. Marriott
Int’l, Inc., 880 N.W.2d 699 (Iowa 2016)). We exercise our discretion to review only
the district court’s ruling on the motion to amend the trial information. The court
of appeals decision is final as to all other issues.
II.
The district court must disallow the State’s motion to amend a trial
information if the amendment charges a “wholly new and different offense” or if
the amendment prejudices the “substantial rights of the defendant.” Iowa R.
Crim. P. 2.4(8)(a). Whether an amendment charges a wholly new and different
offense or prejudices the substantial rights of the defendant are questions of law,
and our review is for the correction of legal error. See Maghee, 573 N.W.2d at 5.
What constitutes and does not constitute a wholly new and different
offense is well established. Forty years ago, in State v. Sharpe, we held an
amendment charged a wholly new and different offense where the amended
charge both increased the potential punishment and charged an offense with
different or additional elements. Sharpe, 304 N.W.2d at 222–23.
7
We have also been clear on what does not constitute a wholly new and
different offense. An offense is not wholly new and different where the
amendment charges the same base prohibition but alleges “different means” of
committing the same base prohibition. Id.; see State v. Schertz, 330 N.W.2d 1,
2–3 (Iowa 1983) (allowing amendment to charge a different means of committing
kidnapping in the first degree); State v. Williams, 305 N.W.2d 428, 431 (Iowa
1981) (“Nevertheless, the effect of the amendment was not to add another offense
but to merely add a new means of committing the same offense, drug trafficking,
and is permissible . . . .”). Nor is an offense wholly new and different where the
amendment charges the same prohibition but adds a predicate or predicates for
enhanced punishment in the context of drug trafficking or recidivist statutes.
See, e.g., Maghee, 573 N.W.2d at 5 (“We agree with the State that under these
circumstances the amendment did not charge a ‘wholly new or different offense.’
Rather, the amendment charged the same offense but with a larger amount of
drugs involved resulting in a potentially more severe sentence.”); State v. Berney,
378 N.W.2d 915, 919 (Iowa 1985) (holding that amendment alleging defendant
to be a habitual offender did not define a new crime but merely constituted a
predicate for enhanced punishment), overruled on other grounds by State v.
Bruce, 795 N.W.2d 1 (Iowa 2011).
Here, the proposed amendment charged a wholly new and different offense
within the meaning of rule 2.4(8)(a) and our cases interpreting the same, and the
district court erred in allowing the amendment. First, the amendment increased
the level of punishment from a term of incarceration not to exceed one year to
8
an indeterminate term of incarceration not to exceed five years and the maximum
fine from $1,875 to $7,500. Compare Iowa Code § 903.1(1)(b) (maximum
sentences for misdemeanors), with id. § 902.9(1)(e) (maximum sentences for
felonies). Second, the amended charge altered the elements of the offense. To
prove assault causing bodily injury, the State was required to prove, among other
things, that Vandermark acted with the specific intent to cause pain or injury to
the victim, to result in physical contact that would be insulting or offensive to
the victim, or to place the victim in fear of physical contact that would be
injurious or offensive. Id. § 708.1(1)–(2). To prove Vandermark committed willful
injury, the State was required to prove, among other things, that he acted with
the specific intent to cause serious injury to the victim. Id. § 708.4. The elements
of the two offenses are different. Contrary to the district court’s reasoning, it is
immaterial that the additional or different element(s) makes the State’s case
more difficult to prove. See, e.g., Sharpe, 304 N.W.2d at 223 (holding amendment
to allege first-degree murder was improper even though it required proof of
additional elements compared to second-degree murder).
The State disagrees that the crimes contain different elements, arguing the
offenses are essentially the same because both crimes require proof of specific
intent. While the State is correct in asserting both the original and amended
charge include a specific intent element, the State’s argument is nonetheless
unavailing because the result a defendant must specifically intend is different.
The willful injury offense requires proof the defendant acted with specific intent
to cause an injury of great severity. Specifically, the defendant must act with the
9
intent to cause a “[d]isabling mental illness” or a bodily injury that “[c]reates a
substantial risk of death,” “[c]auses serious permanent disfigurement,” or
“[c]auses protracted loss or impairment of the function of any bodily member or
organ.” Iowa Code § 702.18 (defining a “serious injury”). The intent to cause a
serious injury is not an element of assault causing bodily injury. The specific
intent elements are thus different.
In concluding that the charge of willful injury causing bodily injury was
not wholly new and different from assault causing bodily injury, the court of
appeals relied on State v. Brisco. In that case, the defendant was charged with
two counts of delivery of a controlled substance, crack cocaine, in violation of
Iowa Code section 124.401. Brisco, 816 N.W.2d at 416. The state was granted
leave to amend the trial information to charge the defendant with two counts of
delivery of a controlled substance, marijuana. Id. The Brisco court reasoned the
amendment was permissible for several reasons. First, the amended trial
information charged the same “base prohibition” and merely alleged different
means of committing the same offense, drug trafficking. See id. at 418–19. This
conclusion was consistent with our caselaw that section 124.401 “defines one
offense, drug trafficking, and enumerates numerous alternative means of
committing it.” State v. Abrahamson, 746 N.W.2d 270, 276 n.6 (Iowa 2008).
Second, the defendant “faced a lesser penalty under the amended information”
rather than a greater penalty. Brisco, 816 N.W.2d at 419. Third, the Brisco court
stated the amended trial information was permissible because it “contained the
same times, dates, and places of the alleged offenses. The State’s theory of the
10
offenses and the defenses would be identical under each.” Id. The court of
appeals seized on this last portion of Brisco in concluding that the amendment
in this case was proper.
We conclude the court of appeals erred in relying on this language in Brisco
because the statement was an incorrect statement of law with respect to what
constitutes a wholly new and different offense. Other than predicates for
enhanced sentencing under drug trafficking and recidivist statutes, we have
focused on whether the new charge increases the potential punishment and
requires proof of different or additional elements. See Maghee, 573 N.W.2d at 5–
6; Sharpe, 304 N.W.2d at 223. The court of appeals erred in holding otherwise.2
The State argues, and the dissent agrees, this court should reject the
bright-line rule announced in Sharpe and adopt a more holistic, ad hoc approach
in determining whether an amendment is wholly new and different. We decline
2While the court of appeals erred in relying on this language in Brisco to determine
whether the amendment charged a wholly new and different offense, we note these additional
considerations listed in Brisco may be relevant in determining whether an amendment would
prejudice the substantial rights of a defendant. “An amendment prejudices the substantial rights
of the defendant if it creates such surprise that the defendant would have to change trial strategy
to meet the charge in the amended information.” Maghee, 573 N.W.2d at 6. Relevant to this
inquiry is whether the defendant had notice of facts that would support the amendment, whether
the defendant was prepared to defend against the charge as amended or sought a continuance,
and whether the amendment would change the defense strategy. See id. With respect to the effect
of surprise on defense strategy, “the critical test . . . is whether the defense’s challenge to the
prosecution’s evidence and presentation of its own evidence will have the same bearing upon the
amended pleading as the original pleading, and that may not always be the case even when the
defense was previously aware of the factual basis of the amendment.” 5 Wayne R. LaFave et al.,
Criminal Procedure § 19.5(b) (4th ed. 2020) [hereinafter LaFave] (footnote omitted). Prejudice may
also arise “if the defendant had no prior notice of the State’s plan to amend and would have pled
guilty had he or she known of that plan before trial.” State v. Brothern, 832 N.W.2d 187, 196
(Iowa 2013). If an amendment does surprise the defendant, prejudice “ordinarily may be avoided
by granting a continuance.” 5 LaFave § 19.5(b); see Schertz, 330 N.W.2d at 2–3. Because we have
already concluded that the amendment of the trial information from assault causing bodily injury
to a charge of willful injury causing bodily injury asserted a wholly new and different offense, we
need not resolve the question whether Vandermark would have suffered prejudice in allowing
the amendment. See Maghee, 573 N.W.2d at 6; Williams, 305 N.W.2d at 431.
11
to do so. The bright-line rule announced in Sharpe, and reaffirmed here today,
protects the role of the courts in screening criminal charges, promotes
consistency in the application of the criminal rules, is the majority rule in this
country, and is of long-standing.
The bright-line rule announced in Sharpe “protect[s] the role of the agency
that screened the charge, whether the grand jury in the case of an indictment or
the magistrate in the case of an information.” 5 Wayne R. LaFave et al., Criminal
Procedure § 19.5(b) (4th ed. 2020) [hereinafter LaFave]. Specifically, Iowa Rule of
Criminal Procedure 2.5(4) provides that a trial information must be screened and
approved by a judge or magistrate prior to filing. In exercising the screening
function, the judge or magistrate must find “that the evidence contained in the
information and the minutes of evidence, if unexplained, would warrant a
conviction by the trial jury.” Iowa R. Crim. P. 2.5(4). Once a neutral and detached
decision-maker has determined that the state has identified evidence sufficient
to charge a defendant with a particular offense with a particular punishment,
the state should not be at liberty to supplant that determination and charge the
defendant with a different crime subject to greater punishment. See State v.
McKeehan, 894 S.W.2d 216, 223 (Mo. Ct. App. 1995) (“In considering whether
an amended information charges a new or different offense, courts have
considered the charge upon which a preliminary hearing was granted.”). Allowing
the state to amend a judicially-approved trial information to charge an offense
with different elements and different punishments works an end-run around rule
2.5(4) and the judicial officers that screened and approved the original trial
12
information. It would add to the already great discretion afforded the prosecutor
in charging the criminal defendant. See Sharpe, 304 N.W.2d at 223. As we stated
in Sharpe, “[w]e do not believe the legislature intended to invest such wide
discretion” under rule 2.4(8)(a). Id.
Second, Sharpe better promotes consistency in the administration of
justice than the rule articulated in Brisco and advanced by the State and dissent.
Comparison of the elements and potential punishments for different offenses is
a straightforward exercise that can be accomplished in an objective and
consistent manner. In contrast, requiring the district court to evaluate the
minutes of testimony, the underlying facts, and the litigants’ theories and trial
strategies (which they may understandably be reluctant to disclose) and
determine how those theories and strategies will be affected by a proposed
amendment is a much more subjective undertaking. This more subjective
undertaking would result in inconsistent determinations across the state of what
constitutes a new and different offense. This is particularly true given that the
trial court judge is frequently new to the file at the time of trial and may have
had only a few minutes to become familiar with the facts of the case as alleged.
Third, these administration-of-justice concerns have led the majority of
jurisdictions to adopt a narrow, elements-based approach similar to our rule in
Sharpe. See 5 LaFave § 19.5(b) (“[M]ost courts will apply the . . . standard that
looks to the elements of crime in determining whether two statutes proscribe the
same offense.”); see also, e.g., Fleming v. State, 814 So. 2d 310, 311 (Ala. Crim.
App. 2001) (“The offense of first-degree receiving stolen property is not
13
encompassed within the offense of first-degree theft charged in the indictment.
They are separate and distinct offenses.”); State v. Montes Flores, 428 P.3d 502,
506 (Ariz. Ct. App. 2018) (stating the charging document “ ‘limits the trial to the
specific charge or charges’ alleged” and that an amendment that alleges an
offense with “materially different elements” is disallowed (quoting Ariz. R. Crim.
P. 13.5(b))); State v. Matautia, 912 P.2d 573, 580 (Haw. Ct. App. 1996) (“Because
driving without a license is not a lesser included offense of driving while license
suspended under any of the three tests, the amended charge against Defendant
alleged an ‘additional or different offense’ and was thus improper . . . .”),
overruled on other grounds by State v. Castillon, 398 P.3d 831 (Haw. Ct. App.
2017); State v. Westgate, 148 A.3d 716, 724 (Me. 2016) (stating amendment is
prohibited if it changes the grade of the offense); State v. Barthman, 917 N.W.2d
119, 125–26 (Minn. Ct. App. 2018) (“An amendment charges a different offense
if it ‘affects an essential element of the charged offense.’ ” (quoting State v.
Guerra, 562 N.W.2d 10, 13 (Minn. Ct. App. 1997))), affirmed on other grounds,
938 N.W.2d 257 (Minn. 2020); State v. Simpson, 846 S.W.2d 724, 727 (Mo. 1993)
(en banc) (amended charge of class “A” felony forcible rape was a different offense
from original charge of class “B” felony rape because the former included an the
additional element of displaying a dangerous instrument in a threatening
manner); State v. Pemberton, 930 N.W.2d 125, 130 (N.D. 2019) (holding the
district court abused its discretion in allowing amendment that “modified the
elements”); State v. Mullins, 705 N.E.2d 709, 710 (Ohio Ct. App. 1997) (stating
amendment is disallowed where it “contain[s] different elements which require
14
independent proof”); Tillman v. Cook, 855 P.2d 211, 215 (Utah 1993) (“Whether
an amendment charges an additional or different offense turns on whether
different elements are required to prove the offense charged in the amended
information or whether the offense charged in the amended information
increased the potential punishment from that originally charged.”).
Finally, stare decisis dictates that we should not disturb our decision in
Sharpe. “Stare decisis alone dictates continued adherence to our precedent
absent a compelling reason to change the law.” Book v. Doublestar Dongfeng Tyre
Co., 860 N.W.2d 576, 594 (Iowa 2015). Sharpe has not proved to be unworkable
in the four decades since it was decided—as evidenced by the relatively small
number of cases involving the issue that the state’s appellate courts have faced.
See Youngblut v. Youngblut, 945 N.W.2d 25, 45 (Iowa 2020) (McDonald, J.,
dissenting) (“The absence of litigation regarding the issue is strong evidence the
. . . rule has been administered without much difficulty in the district courts for
almost three decades despite its dubious logic.”). The State has not demonstrated
a compelling reason to depart from our precedent here.
III.
This brings us to the question of remedy. When a defendant is sentenced
for multiple offenses and a portion of the sentence is vacated, “we may vacate
the invalid part without disturbing the rest of the sentence.” State v. Keutla, 798
N.W.2d 731, 735 (Iowa 2011) (citing State v. Krivolavy, 258 N.W.2d 157, 158
(Iowa 1977)). “We are not, however, required to do so and may remand for
resentencing” even if the sentences are severable. Id. Remand for resentencing
15
is appropriate when the district court considered the sentences to be
interconnected in imposing them. Id.; see State v. Madsen, 813 N.W.2d 714, 730
(Iowa 2012).
On this record, we conclude that the district court’s sentencing on the
misdemeanor convictions was closely tied to its sentencing on willful injury
causing bodily injury. This is particularly true since one misdemeanor sentence
was imposed concurrent with the sentence for willful injury causing bodily
injury, while the other was imposed consecutively. We therefore vacate
Vandermark’s conviction and sentence for willful injury causing bodily injury,
vacate the misdemeanor sentences, and remand this matter for further
proceedings, including resentencing on Vandermark’s remaining convictions.
See Madsen, 813 N.W.2d at 730; Keutla, 798 N.W.2d at 735.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED, SENTENCE
VACATED, AND REMANDED.
Appel, Oxley, and McDermott, JJ., join this opinion. Mansfield, J., files a
dissenting opinion, in which Christensen, C.J., and Waterman, J., join.
16
#19–2112, State v. Vandermark
MANSFIELD, Justice (dissenting).
I respectfully dissent and would affirm James Vandermark’s conviction for
willful injury causing serious injury. The majority opinion disregards the plain
text of the rule and our own body of precedent. Instead, the majority rule picks
out one case, State v. Sharpe, 304 N.W.2d 220 (Iowa 1981), and casts aside our
subsequent decisions that qualified Sharpe. See State v. Maghee, 573 N.W.2d 1
(Iowa 1997); State v. Berney, 378 N.W.2d 915 (Iowa 1985), overruled on other
grounds by State v. Bruce, 795 N.W.2d 1 (Iowa 2011); State v. Williams, 305
N.W.2d 428 (Iowa 1981). The majority’s approach also leads to a questionable
policy outcome. What public policy is served by requiring the State to start over
with a new prosecution?3
I agree that our caselaw in this area is in need of clarification. But I would
opt for a different approach than the majority’s.
I. “Wholly New and Different Offense.”
Iowa Rule of Criminal Procedure 2.4(8)(a) permits amendments to the trial
information to correct errors or omissions of form or substance unless the
amendment prejudices substantial rights of the defendant or charges “a wholly
new and different offense.”
One week before trial, the State moved to amend the information from
assault causing bodily injury, a serious misdemeanor in violation of Iowa Code
3The statute of limitations has not run. See Iowa Code § 802.3.
17
section 708.2(2), to willful injury causing bodily injury, a class “D” felony in
violation of section 708.4(2). The State also provided notice it would seek a
habitual offender enhancement against Vandermark, who has substantial prior
record of crimes of physical violence. The district court granted the motion.
Of course, as before, the case involved the same incident—namely,
Vandermark’s unprovoked beating of Edgar Rodriguez while Rodriguez was
sitting in a hospital waiting room. The trial of this straightforward case took only
a day and a half.
The defendant does not make a serious argument that he was prejudiced
by the amendment. “An amendment prejudices the substantial rights of the
defendant if it creates such surprise that the defendant would have to change
trial strategy to meet the charge in the amended information.” Maghee, 573
N.W.2d at 6. Vandermark does not claim surprise.
So that leaves the issue of whether the amended trial information charged
a wholly new and different offense.
Both the original charge and the amended charge were crimes within
chapter 708, the assault chapter of the Iowa criminal code. For purposes of this
case, the only difference between the two charges is that the section 708.4(2)
charge came with a stiffer penalty and higher burden of proof—i.e., intent “to
cause serious injury” as opposed to intent “to cause pain or injury.” Compare
Iowa Code § 708.4(2), with § 708.1(2)(a). In fact, at trial the original section
708.1(2)(a) charge was submitted as a lesser included offense of the amended
section 708.4(2) charge.
18
Using our starting point as the text of rule 2.4(8)(a), we need to decide
whether this was a wholly new and different offense. It doesn’t sound that way
to me. It’s the same incident, the same conduct (a physical assault), and the
same consequence (bodily injury). The only difference is that the State had to
prove intent to cause serious injury rather than intent to cause injury (or pain).
Ask a person on the street whether this strikes them as “wholly new and
different,” and I think they would say no.4
II. The Majority’s Too Selective View of Precedent.
We have decided about a half dozen cases on the meaning of “wholly new
and different offense.” Unfortunately, the majority wrongfully elevates the first
case and downplays all the others.
The first case was Sharpe, 304 N.W.2d 220. In Sharpe, the trial court had
allowed the state to amend the trial information from second-degree murder to
first-degree murder. Id. at 222. We said that was improper because first-degree
murder was a “wholly new and different offense” from second-degree murder. Id.
at 223. We rejected the state’s view that the amended charge was not wholly new
and different because second-degree murder was merely a lesser included
offense of first-degree murder. Id. We seemed to indicate that an amendment
should be rejected whenever two things were true in combination: the new
4Iowa’s unique wording—“wholly new and different”—distinguishes our standard for
amending indictments and informations from the standard used in most jurisdictions. Most
jurisdictions follow Federal Rule of Criminal Procedure 7(e), which prohibits an amendment that
charges “an additional or different offense,” as opposed to a “wholly new and different offense.”
See 5 Wayne R. LaFave et al., Criminal Procedure § 19.5(b), at 368 (4th ed. 2015). Compare Fed.
R. Crim. P. 7(e), with Iowa R. Crim. P. 2.4(8)(a). Thus, I would not be surprised if other
jurisdictions have taken a different interpretive approach than Iowa.
19
offense contained additional elements and there was a great disparity in
punishment (at that time first-degree murder resulted in life imprisonment and
second-degree murder in a twenty-five-year sentence). Id. We also said that
“alleging a different means of committing the crime” would not be a wholly new
and different offense. Id.
Notably, Sharpe’s entire discussion of amendments was dicta. Because the
jury only found the defendant guilty of second-degree murder, the amendment
didn’t matter. See id. at 225. Any error was harmless. Id.
Only one month later, we began to qualify Sharpe. In State v. Williams, the
original information charged delivery of marijuana and possession of marijuana
with intent to deliver. 305 N.W.2d at 430. The state was then allowed to amend
the information to add a conspiracy charge. Id. We held that this was permissible
because “the effect of the amendment was not to add another offense but to
merely add a new means of committing the same offense, drug trafficking.” Id.
at 431.
Two years later, in State v. Schertz, we upheld an amendment of a first-
degree kidnapping trial information to add “an additional alternative, that the
defendants ‘intentionally subject[ed] [the victim] to torture.’ ” 330 N.W.2d 1, 2
(Iowa 1983) (first alteration in original). We explained that this was just “another
means of committing a particular offense,” namely first-degree kidnapping. Id.
Another two years later, in State v. Berney, we held that the state was
properly permitted to amend its trial information to allege that the defendant
was a habitual offender and therefore subject to increased punishment. 378
20
N.W.2d at 919. We explained that a recidivist law “does not define a separate
crime but merely constitutes a predicate for enhanced punishment.” Id.
Then, in State v. Maghee, we held that the state could amend a trial
information to increase the quantity of drugs that the defendant was charged
with possessing, thereby transforming the charged crimes from a class “C” felony
to a class “B” felony. 573 N.W.2d at 4–6. We concluded the amendment did not
charge a wholly new and different offense because it merely increased the
amount of drugs involved with a potentially more severe sentence. Id. at 5. We
said that the “elements under the original or amended charges [were] the same,”
even though the penalties were greater. Id.
Lastly, in State v. Abrahamson, we discussed the relationship between the
speedy trial rule, rule 2.33, and the rule permitting amendment of trial
informations, rule 2.4(8)(a). 746 N.W.2d 270, 274–77 (Iowa 2008). We rejected
“the State’s contention that manufacturing and conspiracy should be viewed as
one offense in furtherance of the State’s interest in amending an information,
but be viewed as separate offenses when defendants seek to enforce their right
to a speedy trial.” Id. at 276.
Where does this caselaw leave us? Not, in my view, where the majority
lands in this case. One principle is that we allow amendments alleging a different
means of committing the same offense. But “same offense” is interpreted
liberally, at least as to drug offenses. Everything in Iowa Code section 124.401
is apparently deemed one offense.
21
Also, post-Sharpe cases have not followed Sharpe’s dictum that
amendments to add elements and penalties are improper. Apparently, the state
can amend the trial information to add a new element and a greater penalty if
the new element is an increased quantity of drugs or a prior conviction.
Finally, we have linked the state’s ability to bring a new charge, despite
the expiration of speedy trial deadlines, to the state’s inability to amend the trial
information to add that same charge. If the trial information can’t be amended
to add a charge, then the state has the option of bringing that charge in a new
case, without being subject to prior speedy trial deadlines.
I agree the law is somewhat murky and in need of clarification. Contrary
to the dicta in Sharpe, and today’s majority opinion, I would find that an
information can be amended to add an additional element, so long as the result
is to charge basically the same offense. So one assault crime can be elevated to
another assault crime within chapter 708. Of course, the criminal charge must
be based on the same incident as before.
This result strikes me as logical for several reasons. First, it does not make
sense to me to require the State to start over in that situation. In fact, under the
majority’s rule, the State could bring a charge of assault causing bodily injury,
miss the speedy trial deadline for trying the case, and refile a charge of willful
injury causing bodily injury . . . only to obtain a conviction on the original charge
as a lesser included offense.
22
Second, the defendant always has the “no prejudice” backstop. If the
amendment will prejudice substantial rights of the defendant, it will not be
allowed. See Iowa R. Crim. P. 2.4(8)(a).
Third, the majority’s rule may lead to overcharging. That is, to avoid the
possibility of having to start over later, the prosecution may, as they used to say,
“throw the book” at the defendant. Overcharging is unfair to defendants and
unduly complicates trials and plea negotiations.
The Iowa justice system is not a Ptolemaic universe where we decide a case
and everyone else simply follows us. The reality is more complex. Others follow
our opinions, but they also adapt to them. We need to consider what adaptations
will occur in this case.
III. The Majority’s Flawed Policy Arguments.
The majority offers a couple of policy arguments in support of its position.
Both, in my judgment, are flawed.
First, the majority says its bright-line rule interpretation avoids “an end-
run around rule 2.5(4) and the judicial officers that screened and approved the
original trial information.” But there was no end run here. The district court that
approved the amendment performed the same screening that would have been
required for an original trial information. See id. r. 2.5(4).
Second, the majority says that its bright-line rule interpretation avoids
subjectivity—specifically, a determination of how “theories and strategies will be
affected by a proposed amendment.” Interesting theory, but the rule itself doesn’t
support it. For one thing, our rule necessarily requires an inquiry into how
23
theories and strategies will be affected under its prejudice prong. See Maghee,
573 N.W.2d at 6. So, bright lines are unattainable. Moreover, the wording “wholly
new and different” is itself spongy. And the majority’s rule interpretation isn’t
really a bright line anyway, since it puts drug offenses in a separate category.
For the foregoing reasons, I would affirm Vandermark’s conviction and
sentence.
Christensen, C.J., and Waterman, J., join this dissent.