Opinion
No. 2-433 / 01-1919.
Filed December 11, 2002.
Appeal from the Iowa District Court for Black Hawk County, K.D. BRINER, Judge.
Defendant appeals the sentence imposed upon resentencing following conviction for sexual abuse in the second degree and remand, after appeal, for resentencing. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Dante Hunter appeals the sentence imposed upon resentencing following conviction for sexual abuse in the second degree and remand, after appeal, for resentencing. He contends the court relied on impermissible factors in sentencing him to consecutive sentences and that the district court judge was required to recuse himself from the resentencing. We affirm.
This case arises out of the sexual assault of L.H., then a minor child, by four separate individuals. On January 10, 1996 Hunter was charged jointly with Clarence Williams Jr., with second-degree sexual abuse in violation of Iowa Code section 709.3(3) (1993). This case was later joined for trial with the case of Bryon Griffin, II. Hunter waived his right to jury trial and the charge against him was tried to the court. Judge Briner found Hunter guilty as charged and subsequently sentenced him to a term of incarceration not to exceed twenty-five years, ordering it to run consecutive to a ten-year sentence Hunter was then serving. Hunter appealed the conviction and sentence.
The fourth perpetrator, Lincoln Dixon, plead guilty to a lesser offense in exchange for testifying against the other three individuals alleged to have participated in the sexual abuse of L.H.
We affirmed Hunter's conviction but remanded for resentencing, finding the district court improperly considered unproven crimes in pronouncing sentence. State v. Hunter, No. 0-2011/96-1976 (Iowa Ct.App. Feb. 7, 2001). Hunter was resentenced by Judge Briner on October 26, 2001. During the resentencing hearing Judge Briner discussed the appellate opinion which remanded the case for resentencing. In doing so he acknowledged that in earlier sentencing Hunter he had mistakenly considered an earlier event which did not result in a criminal prosecution. Judge Briner assured the parties he would not consider it again on resentencing.
Upon resentencing Judge Briner sentenced Hunter to a term of incarceration not to exceed twenty-five years and ordered the sentence to run consecutively to the ten-year sentence Hunter was currently serving. Hunter appeals from his resentencing. He contends the court once again considered impermissible factors in sentencing him. Specifically, he claims the court was improperly "punishing" him for filing and pursing a postconviction relief action, and it improperly considered the general impact of sexual abuse on a victim's life with no evidence of the impact of the sexual abuse on this particular victim. Hunter further contends Judge Briner should have recused himself because he could not be fair and impartial in pronouncing sentence due to his "emotions about this case."
Our review of sentencing decisions is for correction of errors at law. Iowa R.App.P. 6.4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). We review for an abuse of discretion or for defects in the sentencing procedure. State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995). 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 appeal unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as the court's consideration of impermissible factors. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000); State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). When the trial court relied upon an improper factor, we will set aside a sentence and remand the case for resentencing. State v. Sailer, 587 N.W.2d 756, 762-63 (Iowa 1998). Our supreme court has summarized the sentencing court's duty this way:
The trial court and we on review should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, the defendant's age, character and propensities and chances [for] reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual.State v. Cooley, 587 N.W.2d 752, 754-55 (Iowa 1998) (quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)).
Hunter claims on appeal that the court impermissibly considered the fact he had filed a postconviction relief application and was "punishing" Hunter for doing so and for not dismissing the application. Based on our review of the court's statements at the sentencing hearing we disagree.
Initially we note that it was Hunter himself who, in his written request for the resentencing hearing, brought to the court's attention the fact he had filed a postconviction relief application. Then, at the start of the sentencing hearing, Hunter again brought up the fact his postconviction action was "tracking parallel" to the resentencing. At that point Judge Briner specifically advised counsel on the record that the only question before him at that time was the resentencing. He further stated that none of the issues Hunter might be raising about the original prosecution in his postconviction application were at stake at the resentencing and the resentencing proceeding in no way affected Hunter's rights to proceed in the postconviction action. The judge also stated, the sentence which I will impose today is like the original sentence except that I will have eliminated the mistake I made before. But in every other way the sentence that I will impose today in terms of the claims that you're making in post-conviction is no better or worse than the first sentence was.
Furthermore, Judge Briner positively commented on Hunter's progress since his initial sentencing, stating that Hunter seemed like a different man at the resentencing. The judge then merely stated what could happen if Hunter was successful in is postconviction action (i.e. he could "walk out" of prison) and commented that if Hunter was successful in that case he hoped Hunter never found himself in a courtroom as a criminal defendant again.
Although it is clear from the record Judge Briner knew Hunter had filed a postconviction relief application prior to the resentencing, we find nothing in his comments on the subject to indicate that when making his sentencing decision he was "punishing" Hunter for filing and pursuing his postconviction action. Judge Briner specifically stated the postconviction action had nothing to do with the resentencing, that he was not ruling on any of the issues in the postconviction application, and nothing he was doing would affect Hunter's right to continue to pursue postconviction relief. We conclude the sentencing court did not impermissibly "punish" Hunter for filing and pursuing his postconviction relief action.
Hunter also claims the sentencing court impermissibly considered only "general information" regarding the impact of sexual abuse on a victim, without any evidence of the impact on the actual victim in this case. The record shows Judge Briner did mention several increased risks to "young female victims" of sexual abuse, including increased risks for depression, drug abuse, abusive relationships, and suicide. He also noted the existence of evidence showing that being assaulted by more than one person adds to the intensity of all the adverse effects of such an experience.
We conclude the potential effects mentioned by the court relate to the nature and circumstances of the crime. These are appropriate considerations in determining a sentence. See State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). Although Judge Briner referred to the potential impacts of sexual abuse on a victim in a general way, he did tie these possible effects to some of the specific facts and circumstances of this case. He referred to the impact of sexual abuse on "young female victims," and to the increased effects when a victim is assaulted by more than one person. The first related directly to the victim and indirectly to the nature of the crime. The second related to both the nature and circumstances of the crime. Both were appropriate considerations. We conclude the consideration of additional potential impacts on the victim does not constitute consideration of impermissible factors.
According to the trial information the victim was a minor.
Finally, Hunter contends Judge Briner should have recused himself from the resentencing because he could not be fair and impartial in pronouncing sentence as he was "wrapped up in his emotions about this case." Hunter had asked the court to assign a different resentencing judge. As grounds he cited only Judge Briner's earlier sentencing error, and asserted that being resentenced by Judge Briner would not assure a fair hearing. Judge Briner denied Hunter's request, finding that because he had heard the trial testimony he was in the best position to determine the appropriate sentence due to his familiarity with the facts of the case. Implicit in Judge Briner's ruling is a finding that he could be fair and impartial in resentencing Hunter.
A trial judge's decision on the issue of recusal is reviewed for an abuse of discretion. State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982). The substantial burden of showing grounds for recusal is on the party seeking recusal. State v. Haskins, 573 N.W.2d 39, 44 (Iowa Ct.App. 1997). A judicial officer is disqualified from acting in a proceeding if the officer "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Iowa Code § 602.1606(1) (2001). Only personal bias or prejudice stemming from an extrajudicial source and resulting in an opinion on the merits on some basis other than what the judge learned from participation in the case ranks as a disqualifying factor; judicial predilection does not. State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979); Haskins, 573 N.W.2d at 45. Actual prejudice must be shown before recusal is necessary. State v. Sinclair, 582 N.W.2d 762, 766 (Iowa 1998). The test is whether a reasonable person would question the judge's impartiality. Id.
Hunter has presented only speculation or conjecture, and no substantial evidence, that Judge Briner's consideration of an improper factor in the original sentencing caused him to hold any actual, personal bias or prejudice that would cause him to be unfair or impartial in resentencing Hunter. We conclude Hunter has not shown that a reasonable person would question Judge Briner's impartiality and has not met his substantial burden of proving that grounds for recusal existed.
Although the foregoing is dispositive of this issue, we also note that while Judge Briner might have considered recusing himself even if recusal was not required, matters of judicial economy weighed against him doing so. The case had been tried to Judge Briner without a jury some five years earlier. Judge Briner had prepared a lengthy and detailed ruling and was presumably thoroughly familiar with the case. Requiring another judge to become familiar with the facts of a crime that took place nearly seven years earlier and was tried and decided by another judge five years earlier would have been an unreasonable waste of judicial resources. The following statement by our supreme court in a child in need of assistance case seems particularly appropriate under the facts of this case:
As a matter of judicial economy, it is meet to continue with the judicial officer who is most conversant with the case. Moreover, to change judicial officers whenever a party claimed there was an appearance of impropriety would cause unmanageable disruption in the functioning of our judicial system.In re A.B., 445 N.W.2d 783, 784 (Iowa 1989). Trial courts handle heavy caseloads and in doing so trial judges are often required to deal with the same case on multiple occasions. It is not realistic to expect that a different judge will be assigned to a case merely because another judge has earlier erred in deciding some matter in the case.