Opinion
No. 1-158 / 00-0317.
Filed April 27, 2001.
Appeal from the Iowa District Court for Linn County, JANE F. SPANDE, District Associate Judge.
Defendant appeals from his conviction for interference with official acts. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR PARTIAL RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, Denver D. Dillard, County Attorney, and Susan Nehring, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
On appeal from his conviction for interference with official acts, the defendant argues the trial court abused its discretion in denying his motion to dismiss based on the State's failure to prosecute him within one year. He also argues the court failed to exercise its discretion with respect to the imposition of a fine. We affirm the conviction, vacate the fine imposed at sentencing, and remand for partial resentencing.
Background Facts and Proceedings. Officers arrested Robert Allen on November 12, 1998. At his initial appearance on the day of his arrest, the court ordered Allen to "keep his attorney informed of his whereabouts at all times to insure that he can appear in court upon not less than twenty-four (24) hours notice." Allen's appointed counsel entered her appearance on November 16, 1998. That day, the court released Allen from the Linn County jail on his own recognizance so he could attend to a criminal matter pending in Black Hawk County. The court advised Allen to keep in touch with his attorney.
In a trial information filed on December 16, 1998, the State charged Allen with possession of a controlled substance (crack cocaine), in violation of Iowa Code section 124.401(5) (1997) (Count I); and interference with official acts, in violation of Iowa Code sections 719.1 and 804.12 (1997). Allen filed a written arraignment and plea of not guilty on December 22, 1998. He waived his right to speedy trial pursuant to Iowa Rule of Criminal Procedure 27(2)(b).
Allen spent the next year in and out of jail. He was incarcerated in Black Hawk County on November 17, 1998, and released on January 15, 1999. In February 1999, while out of jail, Allen failed to appear for his final pretrial conference in the instant case. In April 1999 he was arrested and jailed in Black Hawk County, and transferred three weeks later to Linn County. He was transferred back to Black Hawk County in July 1999 and was released on July 24, 1999. On October 17, 1999, Allen was incarcerated in Black Hawk County. He failed to appear a second time for a final pretrial conference on October 21, 1999, while incarcerated in Black Hawk County. In December 1999 Allen was arrested and transferred from Black Hawk County to Linn County, where he remained until trial.
Trial dates were rescheduled four times. After Allen failed to appear for a final pretrial conference in February 1999, the court rescheduled the first trial date from March 1, 1999, to July 6, 1999. The second and third trial dates were changed upon the State's motions for continuance. Allen resisted the State's first motion, but not its second motion. The fourth trial date was rescheduled after Allen's second failure to appear in October 1999. The court set trial for January 24, 2000, approximately one year and four weeks after Allen's arraignment on December 22, 1998.
Upon Allen's request, the court appointed new defense counsel on December 23, 1999. On January 14, 2000, Allen's counsel filed a motion to dismiss for failure to bring the defendant to trial within one year, and a motion to suppress evidence based on the illegal search of the defendant. The court heard and denied both motions on the day of trial.
On January 24, 2000, a jury found Allen not guilty of possession of a controlled substance, but guilty of interference with official acts. Per Allen's request, the court sentenced him immediately. Allen requested the court sentence him under the Iowa Code section 719.1 (Supp. 1999), which changed the charge of interference with official acts from a serious to a simple misdemeanor, and added a fine of not less than $250. The court ordered Allen to serve two days in the Linn County jail and gave him credit for time served. It ordered him to pay a fine of $250 plus surcharge and court costs, and pay $100 for attorney's fees. Allen appeals.
Speedy Trial. We review speedy trial questions under Iowa Rule of Criminal Procedure 27(2) for correction of errors at law. State v. Finn, 469 N.W.2d 692, 693 (Iowa 1991). Because the trial court has discretion to find an exception to the speedy trial rule exists, we ultimately look to whether the trial court abused its discretion. State v. Orte, 541 N.W.2d 895, 898 (Iowa Ct. App. 1995). We will not find an abuse of discretion unless "such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Cunningham, 463 N.W.2d 887, 889 (Iowa Ct. App. 1990).
Allen contends the district court should have granted his motion to dismiss based on the State's failure to prosecute within one year. He points out the State should have known his whereabouts because he was incarcerated in the Black Hawk County jail during a substantial portion of the time he was awaiting trial in Linn County. In addition, Allen cites two motions to continue filed by the State, one of which he resisted. The State contends (1) any delays were attributable to Allen and (2) good cause existed for the delays.
Allen mentions in his brief the constitutional protection of the right to a speedy trial through the Sixth Amendment of the United States Constitution and Article I, section 10 of the Iowa Constitution. However, he did not allege a deprivation of his constitutional right to speedy trial in his motion to dismiss. Allen relied solely upon rule 27 in the district court. Therefore, we address only the issues surrounding interpretation of the rules of criminal procedure. See State v. Rodriguez, 511 N.W.2d 382, 383 (Iowa 1994); State v. Fisher, 351 N.W.2d 798, 800 (Iowa 1984).
Regardless of the fact Allen waived his ninety-day right to speedy trial, we still must consider whether he waived his right to trial within one year from initial arraignment. State v. Mary, 401 N.W.2d 239, 241 (Iowa Ct. App. 1986). Rule of criminal procedure 27(2)(c) provides:
All criminal cases must be brought to trial within one year after the defendant's initial arraignment pursuant to Iowa Rule of Criminal Procedure 8 unless an extension is granted by the court, upon a showing of good cause.
Iowa R. Crim. P. 27(2)(c). Rule 27(2)(c) establishes an "outer limit" for trial, like a statute of limitation. Mary, 401 N.W.2d at 241. When a trial is not commenced within one year of arraignment, the court must dismiss the case unless (1) the defendant has waived his right to a speedy trial, (2) the delay is attributable to the defendant, or (3) "good cause" exists for the delay. Finn, 469 N.W.2d at 694; State v. Miller, 311 N.W.2d 81, 83-84 (Iowa 1981). The State has the burden of demonstrating good cause for the extension. State v. Rodriguez, 511 N.W.2d 382, 383 (Iowa 1994). Under rule 27(2)(c) the burden is a heavy one. Mary, 401 N.W.2d at 241.
In considering whether good cause exists:
[W]e consider only one factor: the reason for the delay. The "reason for the delay" cannot be considered entirely in a vacuum. Rather surrounding circumstances — such as length of delay, whether the defendant asserted his right to speedy trial, and whether defendant was prejudiced by the delay — may be considered only as they weigh on the sufficiency of the reason itself.Mary, 401 N.W.2d at 241.
Allen failed to make himself available for proceedings in this case, despite the court's admonitions. Allen was at liberty when he failed to appear for a pretrial conference on February 17, 1999. His failure to appear resulted in a four-month delay of the trial. The four-month delay caused by Allen more than accounts for the four-weeks between the one-year speedy trial deadline and the actual trial date. In addition, the record does not reveal how the Linn County Attorney could or should have known of Allen's incarceration in Black Hawk County when he failed to appear a second time. Allen apparently ignored the court's orders to inform his attorney of his whereabouts, so his attorney could appear on his behalf. Finally, Allen's counsel acquiesced to the January trial date, rather than insisting the court hold the State to the one-year rule. We conclude the district court did not abuse its discretion when it found the delays were a result of Allen's action and as such constituted good cause.
Fine Imposed. We review for corrections of errors at law. State v. Phillips, 561 N.W.2d 355, 357 (Iowa 1997); State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). Sentencing decisions of the district court are cloaked with a strong presumption in their favor. Thomas, 547 N.W.2d at 225. A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).
Allen argues the $250 fine imposed as mandatory by the district court is subject to suspension. He argues the court erroneously believed it had no discretion to suspend the fine and failed to exercise its discretion in imposing it. We agree.
The State charged Allen under Iowa Code section 719.1 (1997), which classified interference with official acts as a serious misdemeanor. At sentencing, however, Allen requested the court sentence him under section 719.1 as amended by the legislature in 1999. The 1999 amendment changed the offense from a serious to a simple misdemeanor, and added the following language:
In addition to any other penalties, the punishment imposed for a violation of this subsection shall include assessment of a fine of not less than two hundred fifty dollars.
Iowa Code § 719.1(1) (Supp. 1999) (emphasis added).
Although all sentencing statutes provide a sentence "shall" be imposed, most statutes do not eliminate the authority given trial courts by Iowa Code chapter 907 to defer judgment, defer sentence, or suspend sentence. State v. Grey, 514 N.W.2d 78, 79 (Iowa 1994). "[U]nless the legislature has made it clear that the court has no alternative but to impose a certain sentence, the word `shall' does not require imposition of the sentence unless the court decides against deferring judgment, sentence, or suspension of sentence." State v. Ayers, 590 N.W.2d 25, 31 (Iowa 1999).
The record reveals the court erroneously believed it lacked discretion to suspend the fine:
THE COURT: [I]f you are electing to be sentenced as a simple misdemeanor, there is a mandatory fine of $250 that cannot be waived.
. . .
THE COURT: Under the present code it is still a $250 fine. DEFENDANT'S ATTORNEY: Is it?
THE COURT: Yes, it is, even though it has been reduced down to a simple misdemeanor. There is still a mandatory minimum fine.
We must therefore vacate the $250 fine imposed and remand for reconsideration of the fine portion of Allen's sentence. See Lee, 561 N.W.2d at 354 (resentencing limited to the issue of the fine since defendant did not challenge the imposition of a term of incarceration).
We address one final point raised by Allen in order to guide the district court at resentencing. Allen reads section 719.1 with Iowa Code section 903.1(1) and suggests all but $50 of the $250 fine may be suspended. Contrary to Allen's contention, we conclude the district court may, exercising its discretion, suspend the entire $250 fine.
Iowa Code section 903.1(1)(a) provides:
If a person . . . is convicted of a simple or serious misdemeanor and a specific penalty is not provided for . . .the court shall determine the sentence, and shall fix the period of confinement or the amount of fine, which fine shall not be suspended by the court, within the following limits:
a. For a simple misdemeanor, there shall be a fine of at least fifty dollars but not to exceed five hundred dollars. The court may order imprisonment not to exceed thirty days in lieu of a fine or in addition to a fine.
Iowa Code section 903.1(1) (Supp. 1999) (emphasis added). The language "[i]f . . . a specific penalty is not provided" contemplates the legislature may, in other statutes, authorize different penalties for specific offenses and to the exclusion of penalties provided in the general misdemeanor sentencing statute. State v. Heinze, 465 N.W.2d 863, 865 (Iowa 1991). "The district court may not use the penalty provisions provided in section 903.1(1) if a specific penalty is provided in another statute." State v. Daniel, 574 N.W.2d 333, 335 (Iowa 1998).
Section 719.1 provides a specific fine to be imposed for violation of the statute. Therefore, the district court cannot use the fine provisions of section 903.1 to impose a minimum fine for violation of section 719.1. The entire $250 fine imposed by section 719.1 may be suspended by the district court.
We affirm the district court's judgment. We vacate the fine portion of the sentence and remand for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR PARTIAL RESENTENCING.