Opinion
No. 4-353 / 03-2017.
June 9, 2004.
Appeal from the Iowa District Court for Clinton County, Arlen J. Van Zee, Judge.
Terry Hill appeals the sentence imposed following his conviction for operating while intoxicated, third offense, as an habitual offender. CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, and Michael Wolf, County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Defendant Terry Hill appeals the judgment and sentence entered following his guilty plea to the offense of operating while intoxicated (OWI), third offense, as an habitual offender, in violation of Iowa Code sections 321J.2 and 902.8 (2003). He claims the district court failed to exercise its discretion in imposing sentence. We remand for resentencing.
I. Background Facts Proceedings
On November 7, 2003, the State charged Hill with OWI, third offense, in violation of Iowa Code sections 321J.2(1)(a) and 321J.2(1)(c) and having habitual offender status under Iowa Code section 902.8 (count I); driving while barred, in violation of Iowa Code section 321.561 (count II); and possession of a controlled substance, in violation of Iowa Code section 124.401(5) (count III). On December 10, 2003, Hill appeared in court with his counsel and pled guilty to OWI, third offense, as an habitual offender. In exchange for the plea, the State dismissed the remaining counts and some pending driving violations.
After the district court accepted Hill's plea, the defendant waived his right to file a motion in arrest of judgment and the court proceeded with sentencing. The court asked the State and Hill's counsel for any comments before sentencing. The county attorney replied:
The reason why the State has asked for this habitual is that the State does not believe, after consulting with probation, that Mr. Hill would be successful on a probation-type setting, that this is the most appropriate charge. There is little discretion in this, and we ask — That's all the further comment that the State has.
Hill's counsel stated:
I and my client would disagree that the imposition of a sentence that would require him to be detained in prison for a period of time will be useful to him or the community. On the other hand, that is what the law is. And I really don't think the Court has any discretion in the matter. And, therefore, we expect the Court will go ahead and impose the sentence that it has earlier informed Mr. Hill about.
After the county attorney and Hill's counsel concluded their remarks, the court stated: "Well, probation is not an option under the statute. The options are limited by statute." The court then sentenced Hill to fifteen years imprisonment and fined him $2,500. Hill appeals.
The court gave no other reasons for imposing the sentence selected.
II. Scope of Review
Our scope of review is for correction of errors at law. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
III. Discussion
Hill contends the district court mistakenly believed it had no authority to suspend the prison term it imposed. Because of this mistake, he argues the court improperly failed to consider a sentencing option which was available. Upon review of the record, we conclude Hill is correct.
Hill pled guilty to the class "D" felony offense of OWI, third offense, as an habitual offender, as defined in Iowa Code section 902.8. That section defines an habitual offender as "any person convicted of a class `C' or a class `D' felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States." Section 902.9(3) provides that an habitual offender shall be confined for no more than fifteen years. Section 902.8 further provides that a person sentenced as an habitual offender shall not be eligible for parole until that person has served the minimum sentence of confinement of three years. However, a legislative restriction on the eligibility for parole does not in and of itself preclude the imposition of a suspended sentence. See State v. Washington, 356 N.W.2d 192, 197 (Iowa 1984). Restricting eligibility for parole is relevant only if the court elects to commit the offender for a period of incarceration and does not affect its ability to impose another sentence. Id.
"When a court has discretion in sentencing, `it must exercise that discretion.'" State v. Johnson, 630 N.W.2d 583, 590 (Iowa 2001) (quoting State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999)). "When the court fails to exercise its discretion, the sentence must be vacated and the case remanded for sentencing." Id.
Upon review of the record, we conclude the district court erroneously believed it had no discretion to consider suspending Hill's prison sentence. The court's failure to exercise the discretion granted to it under the law requires us to remand this case for resentencing. We express no opinion regarding how the sentencing court's discretion should be imposed.
Hill's conviction is affirmed. The sentence is vacated and the case is remanded for resentencing.