Opinion
No. 4-346 / 03-1654.
June 9, 2004.
Appeal from the Iowa District Court for Tama County, Michael J. Moon, Judge.
Brienne Laree Joy appeals from her sentences, following her guilty pleas and convictions, for child endangerment causing bodily injury, operating while intoxicated, and serious injury by vehicle. SENTENCES VACATED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Brent Heeren, County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Brienne Laree Joy appeals from her sentences, following her guilty pleas and convictions, for child endangerment causing bodily injury, operating while intoxicated, and serious injury by vehicle. She contends the court based its sentencing decision solely on the nature of the offenses, or that it based it on a fixed sentencing policy. We vacate the sentences and remand for resentencing.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS.
The following facts are set forth in the record. After consuming Cognac and beer at the hotel-casino in Tama, Iowa, Joy decided to go for a drive. She took her two year old daughter, Tyra, with her in the vehicle. She placed Tyra in her safety seat. There was snow and ice on the ground at the time and Joy lost control of her car while going around a curve. The car left the roadway and struck a telephone pole. Tyra was thrown from her car seat and suffered a fractured skull and a collapsed lung. She was airlifted to the hospital, placed on a ventilator, and remained in intensive care for over a week. Joy admitted she was under the influence of alcohol at the time of the accident. A blood test at the time of the accident showed Joy had a .109 alcohol concentration.
Joy was charged by trial information with: child endangerment resulting in serious injury (Count I), in violation of Iowa Code sections 726.6(1)(a) (2003), 726.6(3), and 726.6(4); child endangerment resulting in bodily injury (Count II), in violation of sections 726.6(1)(a), 726.6(3), and 726.6(5); operating while intoxicated (OWI), first offense (Count III), in violation of sections 321J.2(1) and 321J.2(2)(a); serious injury by vehicle (Count IV), in violation of section 707.6A; and driving while barred (Count V), in violation of sections 321.560 and 321.561.
Joy entered into a plea agreement with the State wherein she would enter guilty pleas to Counts II, III, and IV, with Count IV charged as a serious injury by vehicle because of reckless driving in violation of section 707.6A(4). Counts I and V were to be dismissed by the State, and the State was to recommend concurrent sentences and probation with placement in a residential correction facility. Joy entered her guilty pleas pursuant to the plea agreement, and the court accepted her pleas.
At the sentencing hearing, pursuant to the plea agreement, the State recommended (1) a five-year suspended sentence with three years probation on the child endangerment charge (Count II), and as a condition of probation that Joy be placed in a residential correction facility, (2) a thirty-day sentence on the OWI charge (Count III), and (3) a five-year suspended sentence on the serious injury by vehicle charge (Count IV). A presentence investigation report (PSI) was prepared prior to sentencing. The court accepted the PSI with no corrections from either party. The PSI recommended, consistent with the State's recommendations, a suspended sentence on Counts II and IV, with three years probation, and thirty days in jail on Count III. Joy also agreed with the State's sentencing recommendations.
The sentencing court, however, did not agree with the recommendations by the State and in the PSI report. The court stated the following on the record at sentencing.
Miss Joy, one of the things that you have the unfortunate or dubious distinction of running into today is a judge who has absolutely no tolerance for people who endanger the lives of their children. I absolutely abhor it. There is no excuse for it. I don't care what your problems are, you do not endanger the lives of children. They have no choice. They have absolutely no choice in the matter. So, I'm not going to put you on probation. I'm going to send you to prison. I'm going to tell you that right now. You're going today.
The court sentenced Joy to an indeterminate period of incarceration not to exceed five years on both Counts II and IV, and thirty days on Count III. The court ordered the sentences to run concurrently, stating it would "give [Joy] that."
In the district court's written sentencing order, the court determined that a "[s]uspended sentence with probation is not warranted" and stated that the "factors considered by the court properly to determine [Joy's] sentence in this case, and the reasons for the sentence are shown by the verbatim record of proceedings taken by the official shorthand reporter at the sentencing hearing."
II. SCOPE AND STANDARD OF REVIEW.
Our review of sentencing decisions is for correction of errors at law. Iowa R. App. P. 6.4. Sentencing decisions of the district court are cloaked with a strong presumption in their favor. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). A sentence will not be upset on appeal unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure. Id.; State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998).
The general rule requiring error preservation is not ordinarily applicable to void, illegal or procedurally defective sentences. State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). A defendant is not required to raise an alleged sentencing defect in the trial court in order to preserve a right of appeal on that ground. State v. Wilson, 294 N.W.2d 824, 826 (Iowa 1980).
III. MERITS.
Joy appeals from her sentences, contending the district court based its sentencing decision solely on one factor, that being the nature of the offenses, or that the court sentenced her based on a fixed policy of imposing prison sentences for the crime of child endangerment and thus failing to exercise the discretion it is required to exercise in making discretionary sentencing determinations.
Iowa Rule of Criminal Procedure 2.23(3)( d) requires a sentencing court to "state on the record its reason for selecting the particular sentence." Failure to state on the record the reasons for the sentence imposed requires the sentence be vacated and the case remanded for amplification of the record and resentencing. State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980); State v. Mai, 572 N.W.2d 168, 170 (Iowa Ct.App. 1997). "A statement may be sufficient, even if terse and succinct, so long as the brevity of the court's statement does not prevent review of the exercise of the trial court's sentencing discretion." State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989).
When a sentence is not mandatory, the district court must exercise its discretion in determining what sentence to impose. The district court must demonstrate its exercise of discretion by stating upon the record the reasons for the particular sentence imposed. The sentencing court, however, is generally not required to give its reasons for rejecting particular sentencing options.
State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996) (citations omitted). In applying its discretion, the sentencing court should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual.
State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)). Our supreme court has stated that the above factors are some of the "minimal essential factors" to be considered when exercising sentencing discretion. State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). "The nature of the offense alone cannot be determinative of a discretionary sentence." State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982) (citing State v. McKeever, 276 N.W.2d 385, 387 (Iowa 1979)). "Each sentencing decision must be made on an individual basis, and no single factor alone is determinative." State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994).
In determining whether the trial court considered pertinent matters in imposing a particular sentence, we look to all parts of the record to find supporting reasons. State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.App. 1995); State v. Delaney, 526 N.W.2d 170, 178 (Iowa Ct.App. 1994). The record includes not only reasons stated during the sentencing hearing, but also reasons given in the written judgment entry. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).
Based on our review of the entire record, including the transcript of the sentencing hearing and the written sentencing order, we conclude the sentencing court relied solely on the nature of the offenses in making its sentencing determination. The above quoted statement from the sentencing hearing was the only reason offered by the court for the sentences imposed. This statement of reasons relies only on the nature of the offenses (i.e. that of endangering a child.) In the written order the court merely states that a suspended sentence with probation was not warranted based on the factors considered, and the reasons given, on the "verbatim record." However, as set forth above, the "verbatim record" from the sentencing hearing shows only the consideration of one factor, the nature of the offenses. The written order does not demonstrate consideration of any of the other "minimal essential factors."
We conclude the court erred in relying solely on the nature of the offenses, because this single factor cannot be determinative of a discretionary sentence. Johnson, 513 N.W.2d at 719; Dvorsky, 322 N.W.2d at 67. We further conclude the case must be remanded for resentencing on a record that reflects consideration of the minimal essential factors that must be considered in imposing sentence. See Dvorsky, 322 N.W.2d at 67. The nature of the offenses may of course be considered, and we do not suggest what appropriate sentences should be. See id. IV. CONCLUSION.
We conclude the sentencing court's sole reliance on the nature of the offenses in making its sentencing decision requires us to vacate Joy's sentences and remand the case to the district court for resentencing. Our determination that the sentences must be vacated on this issue dispenses with the need for us to address Joy's second contention, that the court improperly based its sentencing decision on a fixed policy of incarceration for child endangerment offenders.