Opinion
No. 3-565 / 03-0244
Filed October 29, 2003
Appeal from the Iowa District Court for Scott County, David E. Schoenthaler (plea proceeding) and Bobbi M. Alpers (sentencing), Judges.
Martin appeals his sentence arising out of a guilty plea to conspiracy to commit a non-forcible felony. SENTENCE VACATED, CASE REMANDED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William Davis, County Attorney, and Donald Frank and Robert Weinberg, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Eric Martin pled guilty to conspiracy to commit a non-forcible felony. Iowa Code §§ 706.1, .3 (2001). He was sentenced pursuant to Iowa Code section 902.3A, a statute which has since been repealed. 5 Iowa Leg. Serv. No. 178 § 22 (West 2003). In sentencing him, the district court stated:
The Court is entering this as a determinate sentence under Iowa Code Section 902.3A, and under that Code section the defendant will not be eligible for parole until he has served one-half of the determinate term of confinement under the sentence.
In addition, under Iowa Code Section 902.3A, the defendant is sentenced to an indeterminate term of up to two years, and this shall be served consecutively to the determinate term of confinement. The indeterminate term of up to two years will commence immediately upon expiration of the determinate term of confinement, and then — the defendant will be supervised by the Department of Correctional Services during that period of time.
The court reasoned:
I believe, given the defendant's prior criminal history, the nature of this offense, and the fact that he had only been out of prison several months before he was arrested on this offense, that a determinate period of incarceration is appropriate at this time. While I recognize that he has family responsibilities to his grandmother and to a child, those are going to have to be handled by someone else, because I think this sentence is appropriate given the circumstances here.
Martin contends the "district court had no authority to sentence him to a term of years longer than" the five-year indeterminate term prescribed by Iowa Code section 902.9(5). He also raises an ineffective assistance of counsel claim related to statements made in the plea proceeding concerning his sentence. Finally, he points out that "[t]he district court did not, as prescribed by statute, state the mitigating circumstances supporting the mixed determinate-indeterminate sentence." We believe this final observation is dispositive.
Iowa Code section 902.3A(1) allows a court to sentence a defendant "for a determinate term of less than the maximum length of the sentence prescribed by section 902.9, subsection 5, if mitigating circumstances exist and those circumstances are stated specifically on the record." As the court did not specify mitigating circumstances, we vacate Martin's sentence and remand for further proceedings not inconsistent with this opinion. In light of our disposition, we need not address Miller's remaining arguments. SENTENCE VACATED, CASE REMANDED.
Miller's motion to file a supplemental appendix is granted. Miller's motion to amend its brief based on new information is denied.