Opinion
No. 4-825 / 04-0018
Filed February 9, 2005
Appeal from the Iowa District Court for Hamilton County, Kurt L. Wilke, Judge.
James David Blue challenges his sentence, arguing the trial court relied on impermissible factors. JUDGMENT AFFIRMED, SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Patrick Chambers, County Attorney, and Jay Tiernan, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
James David Blue pled guilty to two counts of stalking and one count of attempted burglary. The district court sentenced him to prison terms not exceeding two years on each count, to be served consecutively. On appeal, Blue argues that the court considered an "improper" victim impact statement and impermissible parole factors in imposing sentence. We need not address the first issue, as we consider the second dispositive.
"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, such as trial court consideration of impermissible factors." State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). "[I]t is impermissible for a sentencing court to deliberately lengthen a sentence in an effort to interfere with the parole practices." State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). This is because the board of parole has the exclusive prerogative to determine a defendant's minimum sentence. State v. Remmers, 259 N.W.2d 779, 784-85 (Iowa 1977).
Prior to imposing sentence the district engaged in the following exchange with the prosecutor:
THE COURT: How long does this [release preparation and treatment] program last?
[PROSECUTOR]: Quite honestly it's my understanding as long as need be. Generally speaking it's a six-month program. But if it needs to be longer, it can be.
THE COURT: I will put it to you this way. [Defense Counsel] says he spent at least 240 some days in incarceration. I don't care if I even give him two, two and two for six years and give him credit for time served, he is not going to serve a lot of time in prison based on the parole board even if I run them consecutively. Does he have time to complete that River's Program?
The court's final statement contained an impermissible consideration of Blue's possible release date. It is true that remaining portions of the sentencing discussion made reference to permissible sentencing factors such as rehabilitation. However, our courts have held that this does not obviate the problem, as "[w]e have no way of knowing what sentence would have been pronounced here without consideration of the parole question." Remmers, 259 N.W.2d at 785; Thomas, 520 N.W.2d at 314.
We vacate Blue's sentence and remand for resentencing.