Opinion
No. 1-942 / 00-2046.
Filed March 27, 2002.
Appeal from the Iowa District Court for Scott County, J. HOBART DARBYSHIRE, Judge.
Defendant appeals following his convictions for second-degree murder, willful injury, first-degree kidnapping, and conspiracy to commit kidnapping. AFFIRMED.
Gary Koos, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
John S. Pardee appeals following his convictions for second-degree murder, willful injury, first-degree kidnapping, and conspiracy to commit kidnapping. He contends the district court erred when it refused to sentence him pursuant to his earlier guilty pleas. We review for an abuse of discretion. See State v. Hager, 630 N.W.2d 828, 833 (Iowa 2001) (decision to reject guilty plea reviewed for abuse of discretion).
Defendant was charged with six crimes stemming from the murder of his half-brother. Prior to jury trial, defendant entered guilty pleas to three of the charges. A form captioned "Memorandum of Plea Agreement I. R. Cr. P. 9" was offered to the court at the plea. The Memorandum was signed by the parties and stated: "Concurrence of the Court to this Agreement is a condition to the acceptance of the plea," and "The Courts (sic) concurrence in this plea is required." The discussion between the court and the defendant does not reveal that the court either accepted or rejected the apparent agreement of the parties that Pardee would be sentenced to prison on each count with the sentences to run consecutively. The order portion of the Memorandum of Plea Agreement was not signed by the court. A presentence investigation was ordered and sentencing set for a later date.
Iowa Rule of Criminal Procedure 9 is now Rule 2.10.
The sentencing court refused to proceed with sentencing based upon a statement the defendant made in the presentence investigation, which the court believed was an assertion of innocence. After a colloquy with the defendant, the court directed that not guilty pleas be re-instated on all six counts. At trial a jury found defendant guilty on five of the counts. Defendant's motion in arrest of judgment was denied and defendant appeals.
Before accepting a guilty plea, the court must first determine if a factual basis for the plea exists. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). This may be done by inquiring of the defendant or the prosecutor, examining the presentence report or by referring to the minutes of testimony. State v. Hightower, 587 N.W.2d 611, 614 (Iowa Ct.App. 1998). Here, the statements made by Pardee in the presentence report, as well as the colloquy that occurred in the courtroom, negated the factual basis for his guilty plea. The presentence report indicated Pardee "was cooperative, but denied his guilt. . . ." Moreover, at the sentencing hearing Pardee asserted his innocence, stating he was in the room at the time his cohorts discussed kidnapping and killing his half-brother but didn't believe anyone would actually harm his brother. He affirmatively stated he did not help to plan or facilitate the murder. Under these circumstances, we find the district court was within its discretion in refusing to sentence Pardee. Accordingly, we affirm.
AFFIRMED.