Opinion
No. 4-130 / 03-1186
Filed March 10, 2004
Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.
Defendant appeals from the district court's ruling sentencing him to consecutive terms of incarceration. SENTENCES VACATED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Rosalise Olson, County Attorney, and Jon Martin, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Karey Watson appeals from the district court's entry of judgment sentencing him to two two-year terms of incarceration, to be served consecutively. We vacate the sentences and remand for resentencing.
Background Facts.
After learning of the sexual abuse of his daughter, Watson entered the home of Robert Miner, the child's maternal grandfather, and struck him. Watson left. Several hours later Miner died in his home. Watson plead guilty to assault with the intent to inflict serious injury in violation of Iowa Code section 708.2(1) (2001) and attempted burglary in the third degree in violation of Iowa Code section 713.6B (2001). The district court sentenced Watson to serve two indeterminate term not to exceed two years, to be served consecutively. Watson appeals.
Scope of Review.
We review for abuse of discretion. State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983). Abuse is found where a district court exercised its discretion on clearly untenable grounds, for clearly untenable reasons, or to an clearly unreasonable extent. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996).
Discussion.
Watson argues that the district court abused its discretion in failing to state reasons for imposing consecutive sentences. The State contends however that the overall sentencing plan reflects the court's reasons for imposing consecutive sentences.
The trial court generally has discretion to impose concurrent or consecutive sentences for convictions on separate counts. State v. Delany, 526 N.W.2d 170, 178 (Iowa Ct.App. 1994) (citing State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976) and Iowa Code § 901.8 (1991)). Consequently, the duty of a sentencing court to provide an explanation for a sentence includes the reasons for imposing consecutive sentences. Id. (citing State v. Harrington, 349 N.W.2d 758, 763 (Iowa 1984)).
At the sentencing hearing, the district court considered the evidence presented, Watson's description of what occurred, his criminal background including a probation revocation, life-style, employment history, and payment of child support. The defense requested a sentence of two years on each charge with suspended sentences and probation. The State recommended two years for each charge and for the sentences to run consecutively without probation. The district court stated,
The need for a strong deterrent on that type of behavior and under the facts of this case, I find that for the purposes of deterrence, both of Mr. Watson, and of others, I agree with the State's sentencing recommendations in this case. Probation is not a strong enough deterrent under the facts of these two pleas.
Further Mr. Watson has been on probation before and has had a probation revoked in the State of Minnesota and he has shown he may not be successful in probation in the future.
The district court provided sufficient reasons to support its decision to impose a term of incarceration rather than probation. However, the court failed to given even a terse explanation of why it imposed consecutive, rather than concurrent, sentences for the two offenses. See State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996). Nothing in the sentencing colloquy conveys the court's reasoning. See id. More is required to enable a reviewing court to properly perform its duty. See id. (citing State v. Delaney, 526 N.W.2d 170, 178 (Iowa Ct.App. 1994); State v. Taggart, 525 N.W.2d 877, 882 (Iowa Ct.App. 1994)). Accordingly, the sentences must be vacated and the matter remanded for resentencing.