IN THE COURT OF APPEALS OF IOWA
No. 20-1531
Filed January 12, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KENNETH HOXSEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Fowler,
Judge.
Kenneth Hoxsey appeals his sentence of incarceration. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Mullins, P.J., and May and Ahlers, JJ.
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MULLINS, Presiding Judge.
In his guilty plea, Kenneth Hoxsey admitted he committed burglary in the
third degree and then—just two weeks later—burglary in the second degree. The
presentence investigation report (PSI) recommended incarceration. At
sentencing, the State adopted the PSI’s recommendation. Hoxsey asked for
suspended sentences instead. The district court ordered immediate incarceration.
On appeal, Hoxsey argues the court abused its discretion by declining to suspend
his sentences.
We begin by considering whether we have jurisdiction to hear Hoxsey’s
appeal.1 See Crowell v. State Pub. Def., 845 N.W.2d 676, 681 (Iowa 2014)
(“Although no party challenges this court’s jurisdiction in this case, an appellate
court has responsibility sua sponte to police its own jurisdiction.”). Under Iowa
Code section 814.6(1)(a)(3) (2020), there is no right of appeal “from . . . [a]
conviction where the defendant has pled guilty.” There is an exception for cases
in which “the defendant establishes good cause.” Iowa Code § 814.6(1)(a)(3). In
State v. Damme, our supreme court first considered the requirements of section
814.6(1)(a)(3) in the context of a sentencing challenge; the court concluded:
We hold that good cause exists to appeal from a conviction following
a guilty plea when the defendant challenges his or her sentence
rather than the guilty plea. Damme received a discretionary
sentence that was neither mandatory nor agreed to as part of her
plea bargain, and she is appealing that sentence and asking for
resentencing without challenging her guilty plea or conviction. A
sentencing error invariably arises after the court has accepted the
guilty plea. This timing provides a legally sufficient reason to appeal
notwithstanding the guilty plea.
1 The State concedes we have jurisdiction.
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944 N.W.2d 98, 105 (Iowa 2020).
On its face, section 814.6(1)(a)(3) might seem to require that a defendant
appealing following a guilty plea always carries the burden to raise and establish
good cause to appeal, even in a sentencing case, notwithstanding the holding in
Damme. Subsequent supreme court case law convinces us Damme should not
be read so narrowly. In State v. Fetner, the court considered a direct appeal of a
sentence following a guilty plea. 959 N.W.2d 129, 131, 134–37 (Iowa 2021).
Fetner did not argue he had good cause to appeal, the State requested the appeal
be dismissed, and Fetner replied that Iowa Code section 814.6(1)(a)(3) is
unconstitutional or he had good cause to appeal. Brief for Defendant-Appellant,
State v. Fetner, 959 N.W.2d 129 (2021) (No. 19-1561), 2020 WL 8765968; Brief
for Plaintiff-Appellee, State v. Fetner, 959 N.W.2d 129 (2021) (No. 19-1561), 2020
WL 8765969, at *6-7; Reply Brief for Defendant-Appellant, State v. Fetner, 959
N.W.2d 129 (2021) (No. 19-1561), 2020 WL 8765970, at *13–24. On appeal, we
found the good cause requirement satisfied based on Damme. State v. Fetner,
No. 19-1561, 2020 WL 5650498, at *1 n.1 (Iowa Ct. App. Sept. 23, 2020), vacated
by Fetner, 959 N.W.2d at 137. On further review, the supreme court agreed.
Fetner, 959 N.W.2d at 134 n.1. We follow the supreme court’s lead and consider
the sentencing issue raised on appeal.
“[T]he decision of the district court to impose a particular sentence within
the statutory limits is cloaked with a strong presumption in its favor.” State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002). A sentence “will only be overturned
for an abuse of discretion or the consideration of inappropriate matters.” Id. We
will not find an abuse of discretion “unless we are able to discern that the decision
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was exercised on grounds or for reasons that were clearly untenable or
unreasonable.” Id.
Hoxsey does not claim “consideration of inappropriate matters” or any other
irregularity in the sentencing procedure. See id. Indeed, the district court properly
explained the reasons for its sentence, including Hoxsey’s extensive criminal
history; his many prior sentences, including sentences of incarceration “in four
different states”; and his noncompliance while he was in jail awaiting sentencing in
this case. Those reasons were not “clearly untenable or unreasonable.” Id. There
was no abuse its discretion.
We acknowledge the various points Hoxsey raised at sentencing and again
in his appellate brief, such as the fact that he had already sat in jail for six months
by the time of sentencing; his acceptance of responsibility for the burglaries; his
recognition of benefits available to him in the community; and “the concern that
further incarceration would tend to detract rather than contribute to his ability” to
become a functioning member of the community. The fact none of those facts or
concerns convinced the sentencing court to order a suspended sentence rather
than immediate incarceration does not show an abuse of discretion. See State v.
Busch, No. 14-1662, 2015 WL 1331878, at *2 (Iowa Ct. App. Mar. 25, 2015) (“A
trial court has broad discretion in sentencing and has no obligation to grant a
lenient or suspended sentence.”).
AFFIRMED.
Ahlers, J., concurs specially; May, J., dissents.
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AHLERS, Judge (specially concurring).
I join in Judge Mullins’s opinion, as I believe it correctly interprets and
applies the law as it currently stands on the jurisdictional question. I believe it also
reaches the correct outcome on the merits. I write separately to express my
agreement with the practical nuances to the jurisdictional question that are raised
in the dissent, even though I conclude that controlling supreme court precedent
prohibits me from joining the dissenting opinion.
If we were considering the question anew, I would find the dissent’s
approach to the jurisdictional question appealing from a statutory interpretation
standpoint. See Iowa Code § 814.6(1)(a)(3) (2020) (providing an exception to the
prohibition on an appeal following a guilty plea “in a case where the defendant
establishes good cause” (emphasis added)). After all, the statutory burden is on
the defendant to establish good cause, and it seems reasonable to require the
appealing defendant to attempt to meet that burden in the defendant’s initial brief.
However, we are not painting on a blank canvas, and the court of appeals is “not
at liberty to overrule controlling supreme court precedent.” State v. Beck, 854
N.W.2d 56, 64 (Iowa Ct. App. 2014). As Judge Mullins persuasively explains,
supreme court precedent holds that a defendant has good cause to appeal from a
sentence following a guilty plea when the sentence is neither mandatory nor
agreed to as part of a plea bargain, even if the defendant does not explicitly assert
to us that “good cause” exists. See State v. Fetner, 959 N.W.2d 129, 134 n.1 (Iowa
2021); State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020). “Good cause” is not in
doubt here because the record establishes Hoxsey appeals from a discretionary
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sentence that is neither mandatory nor agreed to in a plea bargain and the State
concedes jurisdiction.
However, it may not always be clear or conceded that a defendant pleaded
guilty and is challenging a sentence that meets Damme’s categorical grant of good
cause (i.e., a sentence that is discretionary and neither mandatory nor agreed to
pursuant to plea bargain). If good cause is not clear and the defendant does not
explicitly brief “good cause,” the State is left to argue against “good cause” without
knowing the basis for the defendant’s claim. If the defendant’s reply brief reveals
the defendant had some other basis for “good cause” in mind, then the State, which
only gets one brief, does not get the chance to respond. See Iowa R. App. P.
6.903 (providing the procedure and requirements for briefing). This reversal of the
order of arguments disadvantages the State, it disadvantages the court, and it can
disadvantage the defendant if we cannot consider good-cause arguments raised
for the first time in the defendant’s reply brief. See Villa Magana v. State, 908
N.W.2d 255, 260 (Iowa 2018). Furthermore, if, as here, the State does not raise
the issue, the court is then put in the position of having to dig through the record
to try to establish “good cause,” resulting in us taking on a task and an advocacy
role not intended by our rules of appellate procedure or the statute.
Regardless of the outcome here, a defendant places unnecessary burdens
on everyone by forcing the State and the court to guess at the basis for “good
cause.” For that reason, the defendant appealing following a guilty plea should
always explicitly address “good cause” in the appellant’s brief. A short paragraph
is sufficient to address “good cause” when the basis is straightforward, as it is here.
While failure to raise “good cause” is not always fatal under supreme court
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precedent, the defendant assumes considerable risk by leaving the arguments up
to the State and the court, and the defendant may never have the opportunity to
present his or her basis for “good cause” if the issue is more complicated than
assumed.
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MAY, Judge (dissenting).
Because I am not convinced we have jurisdiction, I must respectfully
dissent.
As the majority correctly notes, jurisdiction depends on whether Kenneth
Hoxsey “establishe[d] good cause.” Iowa Code § 814.6(1)(a)(3) (2020). But
Hoxsey has said nothing about “good cause.” His brief does not mention “good
cause.” So I struggle to see how Hoxsey “establish[ed] good cause.” Id.
(emphasis added); see Establish, Black’s Law Dictionary (11th ed. 2019) (“To
prove; to convince someone of ”); see also State v. Vaughan, 859 N.W.2d 492, 503 (Iowa 2015)
(finding waiver where party presented “no argument in support of his contention”);
State v. Louwrens, 792 N.W.2d 649, 650 n.1 (Iowa 2010) (“Moreover, passing
reference to an issue, unsupported by authority or argument, is insufficient to raise
the issue on appeal.”).
To be clear, I am not arguing Hoxsey couldn’t have “establish[ed] good
cause.” See Iowa Code § 814.6(1)(a)(3). As the majority correctly notes, cases
like State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020), may have provided Hoxsey
with potent ammunition.2 But who must load the gun and pull the trigger? If a
defendant declines to make an argument as to why the facts and law support a
2 Note, though, that Damme does not require a finding of “good cause” solely
because a defendant challenges their sentence. Rather, as the court explained in
State v. Thompson, Damme only “held that a defendant who is not challenging her
guilty plea or conviction has good cause to appeal an alleged sentencing error
when the sentence was neither mandatory nor agreed to in the plea bargain.” 951
N.W.2d 1, 2 (Iowa 2020). Hoxsey’s brief did not discuss Damme, Thompson, or
their requirements for a finding of “good cause.”
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finding of “good cause,” I do not think we are obliged to argue for them. See, e.g.,
Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996); Inghram v. Dairyland Mut. Ins.
Co., 215 N.W.2d 239, 240 (Iowa 1974). Rather, I think the argument should come
from defendant’s brief. This approach aligns closely with the words of the statute,
which expressly require “the defendant” to “establish[] good cause.” Iowa Code
§ 814.6(1)(a)(3) (emphasis added). It also aligns with our supreme court’s
teaching that “defendant bears the burden of establishing good cause for the
appeal to go forward.” State v. Tucker, 959 N.W.2d 140, 151 (Iowa 2021)
(emphasis added).
Because Hoxsey did not brief the issue of good cause, I am not convinced
Hoxsey established good cause. So I believe we should dismiss Hoxsey’s appeal.
I must respectfully dissent.3
3 Two final notes: First, I appreciate the majority’s research concerning State v.
Fetner, 959 N.W.2d 129, 135 (Iowa 2021), and its briefs. As the Fetner court
explained, the parties there submitted their briefs before Damme was decided in
May 2020. Fetner, 959 N.W.2d at 134 n.1 (“We decided Damme after the parties
submitted their briefs in this case.”). Conversely, Hoxsey filed his proof brief in
May 2021, over eleven months after Damme was decided. So, unlike the Fetner
appellant, Hoxsey could have made an argument based on Damme—if Hoxsey
had chosen to address the good-cause issue as required by statute.
Second, as the majority notes, the State concedes jurisdiction. As
discussed, though, section 814.6(1)(a)(3) requires “the defendant” to “establish[]
good cause.” By its plain terms, the statute focuses entirely on “the defendant[’s]”
actions, not the State’s.