State v. Horton

McCORMICK, Justice

(concurring specially).

The most important responsibility of a trial judge in a criminal case is his duty to pronounce sentence after a defendant’s conviction. No other power of the judge has such a potentially devastating effect on the lives of the defendant and his family. No other power so affects the public interest.

It is an anomaly that the exercise of this power, among the greatest that one person .may. exercise over the life of another, is virtually unreviewable. We have made it so. If the sentence does not exceed the maximum provided in the applicable statute, we will not interfere unless the record affirmatively demonstrates the sentence resulted from an abuse of the judge’s discretion. State v. Stakenburg, 215 N.W.2d 265, 267 (Iowa 1974). When the record is silent we presume the sentence is grounded upon proper reasons.

The judge is required by statute to give his reasons for a sentence only if he grants probation. § 789A.1(2), The Code (“The court shall file a specific written statement of its reasons for and the facts supporting its decision to defer judgment or to suspend sentence and its decision on the length of probation.”). Neither the legislature nor the court has extended this requirement to sentences involving incarceration.

Since 1851 this court has had a statutory obligation to determine if a challenged sentence is too severe. § 793.18, The Code. Over the years, a distinctive judicial gloss has been applied to this provision. Important here is the requirement that for this court to modify the penalty, “it must have some legal data upon which to base its action.” State v. Baughman, 20 Iowa 497, 501 (1866); see State v. Olander, 193 Iowa 1379, 1383, 186 N.W. 53, 55 (1922) (“ * * * [I]n the ordinary case the court has power, if it is proper to do so, to reduce a sentence, but * * * we should not do so unless there is some legal reason therefor.”); see also State v. O’Dell, 240 Iowa 1157, 39 N.W.2d 100 (1949). Except in original cer-tiorari actions challenging contempt penalties, no sentences have been reduced because of excessiveness in recent years.

We have told trial judges the factors they must consider in passing sentence. State v. Cupples, 260 Iowa 1192, 1197, 152 N.W.2d 277, 280 (1967). Yet, unless the judge makes a record showing his reasons for a particular sentence, we do not know whether he has considered those factors. More important, the defendant does not know, and the public does not know. We disapprove only when the judge gives his reasons and they include a bad reason. See State v. Drake, 224 N.W.2d 476, 479-480 (Iowa 1974); State v. Milliken, 204 N.W.2d 594, 598 (Iowa 1973).

Neither we nor anyone else should, as in the present case, be required to speculate what the judge’s reasons for a particular sentence were. In every case, not only when he grants probation, the sentencing judge should state his reasons in the record.

I would adopt the rule in ABA Standards, Appellate Review of Sentences, § 2.3(c) (Approved Draft, 1968). It provides:

“The sentencing judge should be required in every case to state his reasons for selecting the particular sentence imposed. Normally, this should be done for the record in the presence of the defendant at the time of sentence. In cases in which the sentencing judge deems it in the interest of the defendant not to state fully the reasons for the sentence in the presence of the defendant, he should prepare such a statement for transmission to the reviewing court as a part of the record.”

The same rule is found in ABA Standards, Sentencing Alternatives and Procedures, § 5.6(h) (Approved Draft, 1968). I would *41adopt the rule prospectively, making it applicable to all sentencing proceedings conducted after the date of this decision. See State v. Bigley, 202 N.W.2d 56, 58 (Iowa 1972).

The distinguished commentators list four basic reasons for adoption of this requirement. All are supported by numerous authoritative studies and analyses. First, the statement of reasons should increase the rationality of sentences. A good sentence is one which can reasonably be explained; if a sentence cannot reasonably be explained it is not a good sentence. Second, the statement can have therapeutic value to the defendant. He, above all, is entitled to be told why the particular sentencing alternative has been selected. Third, the statement will permit meaningful appellate review of the sentence. The appellate court is not left in the dark as to why thq sentence was imposed. Fourth, the statement will inform corrections authorities of the reasoning behind the sentence. It will give them the benefit of the judge’s thinking and enable them to focus on problems specifically noted by the judge.

Other authorities suggest adoption of such a rule should promote consistency in sentencing by the judge and between him and other judges. Coburn, Disparity in Sentences and Appellate Review of Sentencing, 25 Rutgers L.Rev. 207, 217 (1971); Comment, 17 St. Louis U.L.Rev., 221, 243-244 (1972). It should' enable the reviewing court to correct a sentence which is unduly severe in light of the relevant factors. It should increase respect for law. And it should assist in the development of uniform sentencing criteria which are rational and fair.

No good reason exists for rejection of the rule. The suggestion that it might increase the number of appeals denigrates the objects of the rule and, in that respect, helps demonstrate the need for it. In fact, experiences of other jurisdictions show the fear of an increase in appeals is unjustified. See Coburn, Disparity in Seríténces on Appellate Review of Sentencing, supra, at 218-219. In addition, this apprehension ignores the fact this rule does not increase a defendant’s right to appeal his sentence; it simply improves the record to reveal the basis of the sentence.

We have not been reluctant to require judges to give reasons for rulings on motions. Rule 118, Rules of Civil Procedure; Ruby v. Easton, 207 N.W.2d 10 (Iowa 1973). Nor have we been reluctant to review claimed excessiveness of judgments for damages in civil cases. See Wiles v. Myerly, 210 N.W.2d 619, 631-632 (Iowa 1973), and citations. We should give at least equal significance and attention to judgments in criminal cases.

The legislature has manifested its desire that sentences result from reasoned judgment. Reasons must be given when probation is granted. § 789A.1(2), The Code. Presentence investigations are required in all felony cases. § 789A.3, The Code. The investigators gather information bearing upon the sentencing considerations we have said are relevant. § 789A.4, The Code. Presentence reports are part of the trial court record. § 789A.5, The Code. As the present case shows, we treat the presen-tence report as important when the sentence is challenged on appeal. However, we do not know whether the trial judge has read and relied upon it unless he says he has done so. We do not know the path he has followed in arriving at the sentence unless he has marked it for us.

It has been well said that, “Sentencing is today a wasteland in the law. It calls, above all, for regulation by law.” Frankel, Lawlessness in Sentencing, 41 U.Cin.L.Rev. 1, 54 (1972). Forceful argument has been made that due process of law requires a written statement of reasons and facts in support of the sentencing decision. Ber-kowitz, The Constitutional Requirement For a Written Statement of Reasons and Facts in Support of the Sentencing Deci*42sion: A Due Process Proposal, 60 Iowa L.Rev. 205 (1974).

Above all, we should adopt the rule because it is right. There is a reasonable chance it will help improve the quality of criminal justice in Iowa. There is a reasonable chance it will help our court system work better. The chance is worth taking. I concur in the result in this case.

MASON and RAWLINGS, JJ., join this special concurrence.