Opinion
No. 4-737 / 04-0359
Filed December 8, 2004
Appeal from the Iowa District Court for Linn County, Thomas Horan, Judge.
Rodney Everts appeals the sentence entered following his conviction for Operating While Intoxicated Third Offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Harold Denton, County Attorney, Susan Nehring, Assistant County Attorney and Jerry Vander Sanden, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Rodney Lee Everts appeals a sentence entered following his conviction for Operating While Intoxicated (OWI) third offense. Everts was committed to the Iowa Department of Corrections (DOC) for an indeterminate term, the maximum length of which was not to exceed five years. Because we find no errors at law in this sentence, we affirm.
I. Background Facts and Proceedings
On January 9, 2004, pursuant to a plea bargain agreement whereby the State recommended Everts be sentenced to a five-year sentence with all but thirty days suspended, Everts pled guilty to OWI, third offense. On February 13, 2004, a sentencing hearing was held. At that sentencing hearing, the district court made the following statement regarding Everts' sentence.
Judgment and sentence of the court that the defendant is committed to the custody of the Iowa Department of Corrections for an indeterminate term, the maximum which shall not exceed five years.
The defendant shall serve this sentence in the OWI program and as a condition of probation. . . . It is the further judgment of the court the defendant is sentenced to thirty days in the Linn County Jail.
Thus, following the district court's initial sentencing statement it appeared that the court had sentenced Everts to both an indeterminate sentence not to exceed five years and thirty days in the county jail.
However, following the district court's initial sentencing statement, the State attempted to clarify the sentence and the following conversation took place.
[The State:] I'm not sure if I understand the court's sentencing him, were you sentencing him to serve the five years, was the five years going to be suspended and he has thirty days in jail?
[The Court:] Well, he is going to the OWI program so he gets the five years, He is transferred under the OWI program to Oakdale. . . . This is what the recommendation of the pre-sentence investigator is he gets the five years.
[Everts' Attorney:] I thought you suspended.
[The Court:] No, I didn't suspend anything, I don't think.
The district court then later attempted to clarify both its sentence and what it believed would happen to Everts by making the following statements.
I'm sentencing five years in the penitentiary to the OWI program. He goes to Oakdale and then they decide where to put him. Last time, last OMVI, he got 30 days. But this time he is not getting 30 days. He is getting the five years and he goes to Oakdale and then they'll keep him there maybe what, 60 days . . . Okay. Well that is what the court's sentence is, he is getting 5 years in the penitentiary, he is sentenced to the OWI program and we've explained what that is, he will be at Oakdale, then they'll determine, you know, he'll probably come back to the Lary Nelson Center for a period of 365 days until maximum benefits probably. I don't know what their procedure is really.
Finally, on February 17, 2004, the district court filed the following written "Judgment and Sentence."
Defendant is committed to the custody of the Director of the Department of Adult Corrections for an indeterminate term, the maximum length of which shall not exceed five years and shall pay a fine of $2,500.00 plus any appropriate surcharge.
Everts appeals asserting the sentence imposed is illegal and void.
II. Scope of Review/Issues
On appeal, our review of a court's application of a sentencing statute is for the correction of errors at law. State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001). A sentence must comply with all applicable statutes. If a sentence is not authorized by statute, it is void. State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994). Everts argues that the district court erred by either (1) sentencing him to both the custody of the director of the DOC for an indeterminate term not to exceed five years and a thirty-day term in the county jail in violation of Iowa Code section 321J.2 (2003), or (2) by ordering him to be incarcerated in the medical and classification center at Oakdale pending transfer to a treatment facility in violation of Iowa Code section 904.513 (2003).
The State concedes at the outset that imposition of both an indeterminate sentence not to exceed five years in the custody of the DOC and thirty days in a county jail would be illegal as the imposition of a thirty-day term in the county jail is only authorized if the sentence of commitment to the DOC is suspended. See Iowa Code section 321J.2(2)(c)(2). However, the State argues that because the district court's written sentence makes no mention of a thirty-day sentence to be served in the county jail, this term was not actually imposed, so that the district court's sentence was not illegal.
When a written judgment differs from the oral sentence, the written judgment and sentence controls. See State v. Melk, 543 N.W.2d 297, 302 n. 1 (Iowa Ct.App. 1995). This is because the oral sentence pronounced by the court is not the judgment of the court; only the record in judgment docket is proof that a judgment is entered and is the enforceable judgment. See State v. Suchanek, 326 N.W.2d 263, 265 (Iowa 1982).
In this case, there is a discrepancy between the district court's initial oral statement regarding sentencing, which confused the parties by appearing to impose both a term of incarceration in the custody of the DOC and a thirty-day jail term, and the subsequent written "Judgment and Sentence" order of the court which imposed only commitment to the Director of the DOC for an indeterminate term not to exceed five years. Because the written judgment and sentence controls, we conclude the district court's sentence was, as written, "Defendant is committed to the custody of the Director of the Department of Adult Corrections for an indeterminate term, the maximum length of which shall not exceed five years. . . ." Moreover, this conclusion is consistent with the district court's intention when proclaiming the sentence as evidenced by the oral statements made by the district court in its attempt to clarify and correct its initial pronouncement of sentence. See Melk, 543 N.W.2d at 302 n. 1 (indicating that sentencing errors in the record may be corrected by the court at any time). Consequently, the district court's sentence did not violate Iowa Code section 321J.2.
Everts relies on the Iowa Supreme Court's decision in State v. Beach for support of his proposition that the district court's sentence violated Iowa Code section 904.513. In Beach, the district court "elected to bypass incarceration in favor of community based sentencing" by committing the defendant "to the custody of the director of the department of corrections for a five year indeterminate term of incarceration under the OWI continuum, with reception at a residential corrections facility operated by the eighth judicial district department of correctional services." Beach, 630 N.W.2d at 600-601 (emphasis added). The district court in Beach also included a "no vacancy plan" in the event the residential corrections facility was at capacity by directing that "in the discretion of the Department the Defendant's custody may be transferred . . . to . . . Oakdale" until space became available at the local facility. Id. at 600. The Iowa Supreme Court held in Beach that a district court electing to bypass incarceration in favor of community-based sentencing was no longer authorized under Iowa Code section 904.513 to order the defendant held at Oakdale pending an opening at a community-based correctional facility. Id. For the following reasons, we find Everts' reliance on Beach misplaced.
Iowa Code section 904.513 was amended in 1996 to omit language that formerly provided for transfer of the offender to Oakdale pending an opening in a community based correctional facility. See Beach, 630 N.W.2d at 600. The district court in Beach had erroneously sentenced the defendant under a pre-amendment version of Iowa Code section 904.513.
First, the district court's written sentence ordered only that Everts be committed to the custody of the Director of the DOC for an indeterminate term not to exceed five years. Absolutely no mention was made of a residential care facility or other community based sentencing. Moreover, the district court, in its final oral statement regarding Everts' sentence stated, "Okay. Well that is what the court's sentence is, he is getting 5 years in the penitentiary. . . ." Thus, in sentencing Everts, the district court did not bypass incarceration in favor community-based sentencing.
Second, even if the district court did bypass incarceration in favor of community based sentencing, the district court did not include a "no vacancy plan" in its order as the court in Beach had; the district court did not direct that custody of Everts may be transferred to Oakdale if there were no vacancy in a residential treatment facility. The references to Oakdale made during the sentencing hearing were merely attempts by the district court to explain what it believed would happen to the defendant. The district court's actual sentencing states Everts is "committed to the custody of the Director of the Department of Adult Corrections. . . ." It makes no reference to Oakdale.
III. Conclusion
The district court sentenced Everts to an indeterminate five-year term of incarceration and directed that he be committed to the custody of the DOC. This sentence does not run afoul of either Iowa Code section 321J.2 or section 904.513. It is a legal sentence.