Opinion
No. 5-423 / 04-1817
Filed June 15, 2005
Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.
Defendant-appellant, Patrick Sheeley, appeals from the judgment and sentence entered following his guilty plea to possession of precursors with intent to manufacture methamphetamine. SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox and Stephan Bayens, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Defendant-appellant, Patrick Sheeley, appeals from the judgment and sentence entered following his guilty plea to possession of precursors with intent to manufacture methamphetamine. He contends the district court erred in imposing a ten-year term of incarceration instead of probation. We vacate the sentence and remand for resentencing.
The State charged defendant with conspiracy to manufacture methamphetamine and possession of a precursor with intent to manufacture. Defendant and the State negotiated a plea bargain under which defendant would enter an Alford plea to the possession charge and stipulate this was a second or subsequent offense under Iowa Code section 124.411 (2003). The State agreed not to pursue the habitual offender enhancement and to dismiss the conspiracy charge. At sentencing, the State would recommend incarceration for ten years to be served consecutive to his parole. Defendant would agree to incarceration, but argue for incarceration for five years to be served concurrently with his parole. When asked by the court if this was the agreement, defendant replied, "there is something, talk about there would be no mandatory." When the court clarified there was no mandatory minimum sentence, even with the enhancement, defendant agreed that was his understanding.
The court conducted the required plea colloquy. During a discussion of the maximum and minimum sentences, the court stated, "It looks as though then that this is also a mandatory prison sentence. You understand that? . . . You are not eligible for probation or suspended sentence. Do you understand that?" Defendant said yes. The defendant entered his Alford plea and the court accepted it. During the sentencing hearing, the court said, "I know for a fact that the Parole Board will be looking at you fairly quickly without a mandatory minimum. I know they'll add some time to it because of your prior record."
We review a district court's sentencing decisions for errors at law. Iowa R. App. P. 6.4. When, as here, a court has discretion in the sentence imposed, we look to whether or not the court abused its discretion. State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983). Discretion is abused when it is not exercised or when it is exercised on grounds or for reasons clearly unreasonable or untenable. State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997).
Defendant contends the district court (1) improperly believed a prison sentence was mandatory, and (2) improperly considered the defendant's eligibility for parole. Iowa Code section 124.411 provides a defendant " may be punished by imprisonment" for up to three times the authorized sentence if this is a second or subsequent offense. (Emphasis added). Defendant points to the court's statement in the plea proceeding that a prison sentence was mandatory and the defendant was not eligible for probation as evidence that the court mistakenly thought it had to impose a prison sentence. He also points to the court's comment about the parole board during the sentencing hearing as an indication the court impermissibly considered his eligibility for parole. See State v. Thomas, 520 N.W.2d 311, 313-14 (Iowa Ct.App. 1994). The State argues the defendant agreed to a prison sentence as part of his plea agreement. By accepting the benefit of the plea, the State argues, the defendant cannot now claim the court should have granted him probation. The State cites no authority for this position.
From the district court's statements, it appears it believed it had to impose some prison sentence and did not have discretion to give the defendant probation. That is a misreading of section 124.411. Accordingly, we vacate the defendant's sentence and remand for resentencing. Because of our resolution of this issue, we need not address the defendant's claim the court considered an improper factor in sentencing him.