Opinion
22-0905
10-25-2023
STATE OF IOWA, Plaintiff-Appellee, v. DAVON MARCELL OLIVER, Defendant-Appellant.
Scott M. Wadding of Sease & Wadding, Des Moines, for appellant. Brenna Bird, Attorney General, and Thomas E. Bakke and Nicholas E. Siefert, Assistant Attorneys General, for appellee.
Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.
Defendant appeals his sentences for robbery in the first degree and burglary in the first degree. Sentences Vacated and Remanded for Resentencing.
Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.
Brenna Bird, Attorney General, and Thomas E. Bakke and Nicholas E. Siefert, Assistant Attorneys General, for appellee.
Considered by Greer, P.J., and Schumacher and Badding, JJ.
SCHUMACHER, JUDGE
Devon Oliver appeals his sentences for robbery in the first degree and burglary in the first degree. He argues the district court abused its sentencing discretion by improperly considering the Iowa Parole Board's practices in imposing a seventy percent mandatory minimum. He also asserts the district court abused its discretion in imposing consecutive sentences. We conclude the district court considered an improper factor when formulating Oliver's sentences, specifically parole board practices in relation to Oliver's mandatory minimum sentence. We vacate Oliver's sentences and remand for resentencing. And because we are remanding for resentencing, we do not address Oliver's argument related to the imposition of consecutive sentences.
I. Background Facts and Proceedings
In the early morning hours of February 23, 2021, Oliver and two other individuals broke into an occupied home by kicking in the back door. Inside, a mother and her three young children were sleeping. Oliver and the two others forced two of the children into a bedroom. At gunpoint, they demanded that the mother unlock a gun safe located in the home. Once unlocked, they removed firearms. All three intruders fled the home, and the mother called 911. Oliver was apprehended and charged with robbery in the first degree, a class "B" felony; burglary in the first degree, a class "B" felony; and conspiracy to commit a forcible felony, a class "C" felony.
During his trial and after the presentation of some of the State's evidence, Oliver reached a plea agreement with the State. He pled guilty to robbery in the first degree and burglary in the first degree in exchange for the dismissal of the conspiracy-to-commit-a-forcible-felony charge. Both sides were free to make sentencing recommendations. The district court accepted Oliver's guilty pleas and sentenced him to two twenty-five-year sentences with a seventy percent mandatory minimum on the robbery charge, with the sentences to run consecutively. Oliver's timely appeal followed.
II. Standard of Review
We review a district court's sentencing decision for corrections of errors at law, and "[w]e will not reverse the decision of the district court absent an abuse of discretion or some defect in the sentencing procedure." State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Additionally, "the decision of the district court to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of inappropriate matters." Id. Abuse of discretion is found only if "the decision was exercised on grounds or for reasons that were clearly untenable or unreasonable." Id.
III. Sentencing
Because Oliver pled guilty, he has no right of appeal absent good cause. See State v. Patten, 981 N.W.2d 126, 129 (Iowa 2022). Neither party disputes good cause exists, as Oliver challenges his sentence rather than his plea of guilty. See State v. Damme, 944 N.W.2d 98, 109 (Iowa 2020).
For his sentencing challenge, Oliver lodges two arguments. First, he claims that the district court inappropriately considered the Iowa Parole Board's practices in reaching its sentencing decision. And second, Oliver asserts that the district court abused its discretion by imposing a seventy percent mandatory minimum and further imposing consecutive sentences.
We begin and end with the consideration of parole in relation to the sentencing issue. "We have said a sentencing court impermissibly invades the prerogative of the parole board by considering the effect a sentence will have on a defendant's parole date." State v. Bentley, 757 N.W.2d 257, 266 (Iowa 2008). During Oliver's sentencing, the court stated the following with respect to the Iowa Parole Board's practices:
The burning question here is whether or not the Court will impose-or what amount of mandatory sentence the Court will impose and whether the Court will impose a consecutive term. Truth be told, it's the Court's personal opinion whether it's consecutive or concurrent, given our current parole board's handling of cases with mandatory minimums, this case would go down as a 25-year sentence with a mandatory minimum or a 50-year sentence with a mandatory minimum, and it really makes no difference because the mandatory minimum will control the amount of time that the defendant serves entirely. And it's my personal opinion it won't be a single day longer regardless of whether it's a 25-year sentence or a 50-year sentence .... The amount of time that you serve will be entirely up to the parole board and you may be eligible for parole before the sentence is discharged.
We conclude the court's wording signals that it considered parole board practices to alter the risk of release. As the court was required to set a mandatory minimum sentence between fifty to seventy percent of the maximum term, see Iowa Code 902.12(3) (2021), we highlight the court's comments that the "mandatory minimum will control the amount of time that the defendant serves entirely." We recognize that although a court cannot use consecutive sentences to "thwart the perceived risk of early parole," State v. Hulbert, 481 N.W.2d 329, 335 (Iowa 1992), "[s]entencing courts are not prohibited from referring to the possible effects of parole practices on the time that a defendant will actually serve." State v. Jason, No. 14-1162, 2015 WL 6510334, at *12 (Iowa Ct. App. Oct. 28, 2015) (citing State v. Vanover, 559 N.W.2d 618, 635 (Iowa 1997)). Here we determine the court stepped over the line.
True, as noted by the State, the district court cited other permissive factors in formulating Oliver's sentence. And we have considered the court's additional comments at sentencing including the statement that the amount of time Oliver would serve would be "entirely up to the parole board." We have also considered the State's suggestion that the court's comments were merely explaining the application of the mandatory minimum. See id.; Vanover, 559 N.W.2d at 635 ("Taking the district court's statements in context, we think, as the State suggests, that the court was merely explaining the application of the mandatory minimum to the increased sentence it imposed.").
But, "'if a court in determining a sentence used any improper consideration, resentencing of the defendant is required,' even if it was 'merely a "secondary consideration."'" State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (citations omitted). We cannot speculate about the weight the sentencing court gave to the impermissible factor. Id. Taking the court's comments in context, in particular the consideration that the "mandatory minimum will control the amount of time that the defendant serves entirely," we conclude that the court's comments were more than observational comments about how the Iowa Board of Parole may consider the release date on sentences involving mandatory minimums.
Oliver's convictions stand. His sentences are vacated, and the case is remanded for resentencing before a different district court judge. Because we are remanding for resentencing, we do not address Oliver's second argument related to the court's imposition of consecutive sentences.
SENTENCES VACATED AND REMANDED FOR RESENTENCING.