Opinion
No. 3-085 / 02-0879
Filed March 26, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Anthony T. Handy appeals from sentences imposed following his guilty pleas to second degree arson and terrorism. SENTENCE VACATED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, John Sarcone, County Attorney, and George Karneas, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Anthony T. Handy was charged by trial information with arson in the first degree and terrorism. Pursuant to a plea agreement, Handy pled guilty to arson in the second degree and terrorism on March 21, 2002. The pre-sentence investigation report recommended Handy not be granted a suspended sentence. The report made no mention of whether Handy should receive concurrent or consecutive sentences. Handy was sentenced to a term not to exceed ten years for the arson conviction and a term not to exceed five years for the terrorism conviction, to be served consecutively. Handy appeals, alleging the district court abused its discretion in imposing the sentences because it failed to articulate any reasons for its decision to impose consecutive rather than concurrent sentences.
Iowa Rule of Criminal Procedure 2.23(3)( d) requires the court to state on the record its reason for selecting a particular sentence. At the sentencing hearing, the district court stated:
The presentence report makes clear that you have had a long-term substance abuse problem which is complicated by some mental conditions and when those two come together you are pretty dangerous. It doesn't mean that you're a bad person, but you can — you can injure people and — and that's a problem.
In the present situation, the situation that developed was very serious and could have resulted in your being sent to prison for up to 25 years or more with a mandatory minimum of 85 percent. . . . That's a harsh sentence, but it's what the — the law would require.
Mr. Karnas and your lawyer, however, reached a decision along with you, of course, to deal with this case in a different way, and I think under the circumstances it was the right thing to do.
However, Mr. Handy, I do not believe that probation is appropriate. I don't believe it's appropriate because in the past when it has been tried you have not been responsive to it. The community corrections is, in my view, a — a very good idea, and I believe strongly in it, but when that was tried in your instance you simply walked away from the place. We have to make our decisions based on how people act and for that reason I don't believe that trying the same thing all over again would be the right thing to do.
I say that with a full understanding of all the challenges that you ever (sic), but I cannot in good reason and conscience place you on probation again.
For that reason you are adjudged guilty of Arson in the Second Degree and Terrorism, a Class C and a Class D felony respectively, and as to the Arson, you will be imprisoned for a period not to exceed ten years and the Terrorism not to exceed five years. The sentences will run consecutively. . . . Probation is denied for the reasons set forth in the record. Restitution is required.
Although the district court gave extensive reasons for its refusal to grant probation, it failed to give "even a terse explanation of why it imposed consecutive, as opposed to concurrent, sentences." State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996). A sentencing court must give reasons for its decision to impose consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000); Uthe, 542 N.W.2d at 816. Accordingly, we vacate Handy's sentences and remand for resentencing.