Opinion
No. 2-368 / 01-1463.
Filed July 31, 2002.
Appeal from the Iowa District Court for Pottawattamie County, KEITH E. BURGETT, Judge.
James C. Thomas appeals from his conviction and sentence for two counts of delivery of methamphetamine in violation of Iowa Code section 124.401(1)(c)(6) (1999). CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Richard Crowl, County Attorney, and Martha Heinicke, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
James C. Thomas appeals from his conviction and sentence for two counts of delivery of methamphetamine in violation of Iowa Code section 124.401(1)(c)(6) (1999). We affirm his conviction, but vacate his sentence and remand for resentencing.
I. Factual Background and Proceedings. In April 1999, Thomas sold methamphetamine on two occasions to a confidential informant working for the Southwest Iowa Narcotics Enforcement Task Force. The informant wore an audio body wire and tape recorded both transactions. The State charged Thomas with two counts of delivery of methamphetamine. Thomas pleaded guilty to both charges and accepted placement in drug court pursuant to Iowa Code section 124.401E. The court ordered Thomas to begin treatment and stated his sentence for the two convictions would be held "in abeyance" while he was transferred to the Mount Pleasant treatment facility under the supervision of the drug court.
On August 6, 2001, the district court noted that Thomas had absconded from supervision at the drug treatment facility and issued a warrant for his arrest. Thomas appeared pro se in open court on August 21, 2001 and admitted to using drugs during his probationary period. The court sentenced him to an indeterminate term of imprisonment not to exceed 10 years on each count, and ordered the sentences to run consecutively. On appeal, Thomas contends the district court erred by (1) imposing an illegal sentence pursuant to section 124.401E(1) and (2) misinforming him of the consequence of his guilty plea. He further asserts his sentencing was defective in several ways.
II. Scope and Standard of Review. Sentencing decisions of the district court are reviewed for errors at law. Iowa R. App. P. 6.4; State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of district court discretion or a defect in the sentencing procedure. State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983).
A defendant's contention the district court failed to make the necessary inquiry to ensure a guilty plea was voluntary and intelligent is a constitutional claim. State v. Everett, 372 N.W.2d 235, 236 (Iowa 1985). "When we consider a challenge to a guilty plea proceeding involving constitutional safeguards, we make an independent evaluation of the circumstances as shown by the entire record, which we review de novo." State v. Sayre, 566 N.W.2d 193, 195 (Iowa 1997) (quoting State v. Oldham, 515 N.W.2d 44, 46 (Iowa 1994)).
III. Merits. We begin our analysis with Thomas's argument the district court imposed an illegal sentence. In particular, Thomas argues the district court misapplied the law when it failed to suspend his sentence pursuant to section 124.401E(1). Instead, Thomas asserts, the district court failed to impose a sentence after accepting his plea and deferred sentencing pending completion of the drug court program.
Iowa Code section 124.401E(1) provides:
If a court sentences a person for the person's first conviction for delivery or possession with intent to deliver a controlled substance under section 124.401, subsection 1, paragraph "c", and if the controlled substance is amphetamine, its salts, isomers, or salts of its isomers, or methamphetamine, its salts, isomers, or salts of its isomers, the court may suspend the sentence, and the court may order the person to complete a drug court program if a drug court has been established in the county in which the person is sentenced or order the person to be assigned to a community-based correctional facility for a period of one year or until maximum benefits are achieved, whichever is earlier.
We initially note the State's argument Thomas did not preserve error on this claim because he did not object to this procedure at the time he entered the drug court program. We nevertheless address Thomas's claim on the merits because, preserved or not, we reach the same result.
The State argues it is inconsequential whether Thomas's sentence was suspended or deferred because he failed to comply with the drug court program by absconding from the drug treatment facility and by using drugs. We agree. By failing to successfully complete the drug court program, Thomas did not qualify for a suspended sentence, a deferred judgment, or a deferred sentence. We find any error the district court allegedly made in deferring or failing to suspend the sentence was therefore harmless.
In a related argument, Thomas argues his guilty plea was not voluntary or intelligent because the district court misinformed him as to the consequences of his plea. He contends the district court informed him during the guilty plea proceeding that the charges against him would be "dismissed" if he successfully completed the drug court program; however, he contends such an outcome would be impossible because section 124.401E only authorizes a suspended sentence. Thomas argues that if he had been aware the charges could not be dismissed upon successful completion of the treatment program, he would not have pleaded guilty.
During the plea colloquy, the district court informed Thomas:
. . . So we'll have this case transferred from criminal district court to the drug court pending successful completion of the drug court. In the event that you complete it successfully, your charges will be dismissed against you. If you fail to successfully complete it, you will end up doing 20 years in the penitentiary. There are — and there are some minimums associated with this offense that you'd be — you would end up doing three and a half years on each — each offense or a total of seven years hard time.
In support of his argument, Thomas relies primarily on State v. Boone, 298 N.W.2d 335 (Iowa 1980). In Boone, "the district court incorrectly indicated to the defendant that there was a possibility of a suspended sentence or a deferred judgment" during the guilty plea proceedings. Id. at 337. Our supreme court concluded the court's improper advice resulted in an involuntary and unknowledgeable guilty plea. Id. at 337-38.
We find Boone distinguishable from the case at hand. Unlike the defendant in Boone, the "dismissal" of Thomas's charges was contingent upon his successful completion of the drug court program. Because he never successfully completed the drug court program, we find Thomas's eligibility for "dismissal" moot and conclude the district court's error was harmless. Furthermore, we note the district court complied with the requirements of Iowa Rule of Criminal Procedure 2.8(2)(b) informing Thomas of his rights to a jury trial, to remain silent, to cross-examine witnesses, and to compel witnesses to testify on his behalf in addition to the requisite sentence for the crimes charged. In addition, Thomas was informed of the direct consequences of his plea, including the maximum and minimum penalties he would face if he failed to complete the drug court program. For the foregoing reasons, we conclude Thomas's guilty plea was knowingly and voluntarily entered.
Finally, Thomas argues the district court made numerous errors at his sentencing. Thomas contends he was denied his right of counsel and allocution. He further argues the district court failed to give adequate reasons for the sentence imposed and failed to order and use a presentence investigation report.
The following record was made before the court at Thomas's sentencing on August 16, 2001:
THE COURT: Have a chair, Jim. You're going to prison.
THE DEFENDANT: I figured that.
THE COURT: Why'd you figure that?
THE DEFENDANT: Things just ain't going right, Your Honor.
THE COURT: Can't handle it.
THE DEFENDANT: No, I can handle it.
THE COURT: No, you can't.
THE DEFENDANT: Yes, I can.
THE COURT: All right.
THE DEFENDANT: I don't deserve to go to prison today.
THE COURT: I see.
THE DEFENDANT: I don't deserve to get sentenced to prison for caring about somebody. That's all this has been, all my troubles have been, all of it. It's not — I have been rehabilitated. I've showed — I have changed a lot. I have. I don't commit crimes no more. I don't sell drugs no more. I don't cause problems no more. I'm going to prison today because I cared about somebody. I care about Tiffany. She's killing herself on drugs. She's killing herself. This man knows; Pat knows. Killing herself. You can laugh —
THE COURT: I not laughing —
THE DEFENDANT: — you can throw me in the joint for 20 years —
THE COURT: I'm not laughing.
THE DEFENDANT: — I don't deserve this though.
THE COURT: Just keep quiet now.
THE DEFENDANT: I don't deserve this. I don't deserve this.
THE COURT: You are probably the most drug abuse addicted —
THE DEFENDANT: I know.
THE COURT: — person —
THE DEFENDANT: I know.
THE COURT: — that we have.
THE DEFENDANT: I've been clean though. I've been clean —
THE COURT: The tracks on your —
THE DEFENDANT: — for a long time.
THE COURT: The track marks on your —
THE DEFENDANT: The pressure, yeah, they're gone —
THE COURT: — arms give it away, doesn't it?
THE DEFENDANT: Yeah, but I don't deserve to go prison, Your Honor, for — I've been under so much pressure, I used. I did use.
THE COURT: So the drug court really wasn't doing any good.
THE DEFENDANT: Drug court done a lot for me. Drug court done a lot for me.
THE COURT: It doesn't do enough for you that you wanted to go out and re-use —
THE DEFENDANT: One time I go out and re-use. I don't deserve to go to prison today.
THE COURT: Jim keep quiet for a while, will you, please.
I'm going to send you to prison and you came in here and pled guilty on the 28th of September to Delivery of a Controlled Substance, Methamphetamine, in violation of 124.401(1)(c)(6) and Count II was the same charge. They're both ten-year offenses. You're going for 20 years that are going to be consecutive and not concurrent. That was the agreement that you came in to drug court on.
And the sheriff will take you down to the designated reception center and start your incarceration. At the time you came in there was no bonds on appeal. You waived all your rights to being sent back for prosecution in criminal district court.
THE DEFENDANT: And that's it, huh?
THE COURT: That's it . . .
The State argues Thomas has not preserved error on this issue because he has not provided the court with a record for review. As we were able to examine the entire transcript of the plea and sentencing proceedings, as well as the criminal and drug court files, we reject the State's error preservation argument and proceed to the merits of his claim.
The State concedes the district court failed to comply with the rules of criminal procedure when imposing Thomas's sentence, but contends compliance was unnecessary because the court was simply effectuating the agreement Thomas entered into prior to entering the drug court. In support of this argument the States relies on State v. Snyder, 336 N.W.2d 728 (Iowa 1983). In Snyder, our supreme court held that the failure of a sentencing court to state its reasons for imposition of the sentence is harmless when the sentence of imprisonment is "not the product of the exercise of the trial court discretion but of the process of giving effect to the parties' agreement." Id. at 729.
We conclude, at a minimum, the State's reliance on Snyder may render the court's failure to state its reasons for the sentence harmless; however, the State fails to address Thomas's remaining claims in regards to his right to counsel and allocution as well as the use of a pre-sentence investigation report. We conclude the district court's failure to comply with the rules of criminal procedure during Thomas's sentencing warrants resentencing. Accordingly, we vacate Thomas's sentence and remand for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.