Opinion
23-1099
03-27-2024
STATE OF IOWA, Plaintiff-Appellee, v. BRANDON C. WILLIAMS, Defendant-Appellant
Brandon Brown of Parrish Kruidenier Dunn Gentry Brown Bergmann & Messamer, L.L.P., Des Moines, for appellant. Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee.
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, Judge.
The defendant appeals the sentence imposed following his conviction for operating while intoxicated, second offense. VACATED AND REMANDED FOR RESENTENCING.
Brandon Brown of Parrish Kruidenier Dunn Gentry Brown Bergmann & Messamer, L.L.P., Des Moines, for appellant.
Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney General, for appellee.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
GREER, JUDGE.
Brandon Williams appeals the sentence imposed following his guilty plea to operating while intoxicated (OWI), second offense. Williams asserts the sentencing court relied upon facts that were not admitted by him nor proved by the State. He asks us to vacate his sentence and remand for resentencing before a different judge. Because we find that the sentencing court did rely on this impermissible factor, we vacate Williams's sentence and remand for resentencing.
I. Background Facts and Prior Proceedings.
In March 2022, Des Moines Police officers stopped Williams after he crashed his vehicle into a fire hydrant while traveling at a high rate of speed. After noticing bloodshot and watery eyes, slurred speech, and the strong smell of ingested alcohol, the officers requested that he participate in standardized field sobriety testing; Williams refused. Williams's blood was drawn pursuant to a warrant, and tested positive for tetrahydrocannabinol (THC), cocaine metabolites, marijuana metabolites, and had a blood alcohol content (BAC) of 0.069 g/100mL, below the legal limit of 0.08 g/100mL. The State charged Williams via trial information with OWI, third offense, in violation of Iowa Code section 321J.2 (2022); driving while license denied or revoked, a serious misdemeanor, in violation of section 321J.21; failure to maintain control, a simple misdemeanor, in violation of section 321.288(1); and reckless driving, a simple misdemeanor, in violation of section 321.277.
See Iowa Code § 321J.2(1)(b) (setting the legal limit for an OWI charge at "an alcohol concentration of .08 or more").
In January 2023, Williams pled guilty to a lesser-included offense of OWI, second offense, an aggravated misdemeanor. In his guilty plea, he listed a prior conviction for OWI, first offense. But for the factual basis for the plea, he only admitted that he operated "a motor vehicle with a detectable level of marijuana in my system ...." (Emphasis added.) The written plea agreement did not accept the minutes of testimony as true. Yet, the court set the plea hearing, requiring personal attendance, and in its unchallenged order following the unreported hearing, said:
As part of the plea agreement, the State dismissed the charges for driving while license denied or revoked, failure to maintain control, and reckless driving.
The Defendant PLEADS GUILTY to the offense set out above. The Court has reviewed the signed petition to plead guilty and has considered the statements of the Defendant. The Court finds the Defendant understands the charge, the penal consequences and the constitutional rights being waived. Based on the statements of the Defendant, statements of the Prosecutor, and the Minutes of Testimony accepted as true by the Defendant and considered by the Court, the plea has a factual basis and is knowingly, voluntarily and intelligently made. Defendant's plea is accepted subject to confirmation of the plea agreement at the time of sentencing.(Emphasis added.) That same month Williams completed a presentence investigation (PSI). The PSI preparer reported that Williams had four lifetime OWI convictions, recalled last using cocaine in March 2022, and admitted to being "under the influence of alcohol at the time the instant and pending offense occurred." Still, he told the PSI preparer he was not intoxicated at the time of his arrest and he was not "under the influence of any illegal drugs at the time" of the offense. In the section labeled offender intervention comments, the PSI preparer also noted that Williams had completed the OWI second offense impaired driver's education program twice: once in 2013 and once in 2017. Overall, the PSI preparer recommended the court require that Williams refrain from the use of alcohol and illegal drugs, participate in the OWI second offense program, wear a secure continuous remote alcohol monitor (SCRAM), comply with frequent urinalysis, and complete an appropriate amount of community service. The court set sentencing for March.
These were listed as having arrest dates of 2010 in case OWOM069129, 2012 in case OWOM074747, 2016 in case OWOM080993, and 2022 for the current offense. None were dismissed.
In March, the court continued the scheduled sentencing hearing after Williams stated that he would test positive for ingesting marijuana if he submitted to a urinalysis within that week. After four additional continuances at Williams's request, the court held the sentencing hearing in June. While awaiting the rescheduled sentencing hearing, Williams submitted to a urinalysis in April and May; both came back negative for all tested substances. He completed a psychiatric diagnostic evaluation in May and attended mental health treatment and counseling sessions. He also attended relapse prevention therapy beginning in April. Prior to the hearing, the court ordered an updated PSI. The PSI preparer met with Williams in March and May; the updated reports from those visits reflected Williams's admission he had consumed alcohol and smoked marijuana since his arrest. In this later report, the preparer changed the sentencing recommendation to imprisonment. Yet, the State recommended, and Williams requested, a sentence of twenty-five days in jail with credit for five days-one day of credit for time served and four days of credit for completing the OWI second offense program. Both parties agreed to forty hours of community service and two years of probation as additional recommendations. Williams requested in-home detention as an alternative if the court did not accept the joint recommendation.
At the sentencing hearing, Williams insisted that he only had three nanograms of THC in his system the night of his arrest. And he objected to the court considering the presence of any other substance in his system other than the low level of THC, which was the basis for the plea agreement. But the court said, "Let's, first of all, set the record straight. The test results were more than just three nanograms of THC. It was .069 of alcohol. There were metabolites of cocaine." Yet the court added, emphasizing its main concern: "Even while you're waiting for the case to get concluded, you can't stop using drugs. That's the concern that I have." Furthermore, it stated, "This is the fourth time you have done something like this. That's ridiculous."
The court did not follow the sentencing recommendation in the plea agreement and instead sentenced Williams to sixty days in jail with credit for one day served and required that he complete the OWI second program; completion of the program would be credited for four days of time served. The court also placed Williams on probation for two years following his release from jail and required that he wear a SCRAM, submit to urinalysis during probation, and complete forty hours of community service. Because Williams completed a substance-use-disorder evaluation in April 2022 that did not recommend any treatment services, the court did not order any programing for substance use disorder. In its sentencing order, the court marked the boxes next to the following criteria as "factors the most significant in determining" Williams's sentence: the nature and circumstances of the crime, protection of the public from further offenses, Williams's criminal history, Williams's substance use disorder history, Williams's propensity for further criminal acts, and maximum opportunity for rehabilitation as sentencing considerations. The court also wrote, "This is [Williams's] fourth lifetime OWI. [Williams] continued to use controlled substances after his arrest and plea." Williams appeals.
Although Williams pled guilty, because he is challenging the sentence imposed and not the guilty plea, he has good cause for appeal. See Iowa Code § 814.6(1)(a)(3) (granting the right of appeal "where the defendant establishes good cause"); State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020) ("We hold that good cause exists to appeal from a conviction following a guilty plea when the defendant challenges his or her sentence rather than the guilty plea.").
II. Standard of Review.
"[T]he decision of the district court to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of inappropriate matters." State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). To establish an abuse of discretion, a defendant bears the burden to affirmatively show that the district court relied on improper factors or clearly untenable grounds. State v. Sailer, 587 N.W.2d 756, 759, 762 (Iowa 1998). "The test for whether a sentencing court abused its discretion is not whether we might have weighed the various factors differently." State v. Gordon, 998 N.W.2d 859, 863 (Iowa 2023). "[M]ere disagreement with the sentence imposed, without more, is insufficient to establish an abuse of discretion." State v. Pena, No. 15-0988, 2016 WL 1133807, at *1 (Iowa Ct. App. Mar. 23, 2016). A ground is untenable if it is based on an erroneous application of law. Willard v. State, 893 N.W.2d 52, 58 (Iowa 2017).
III. Analysis.
Williams contends the district court improperly relied on facts that he never admitted, and the State never proved, when imposing sentence-namely, that he operated a vehicle with alcohol and cocaine in his system. Because he only pled to having a detectable level of marijuana in his system, he maintains the court could not consider these unproven allegations when it imposed the sentence. At the onset, an OWI second offense is punishable by a minimum period of incarceration of seven days and a maximum of two years. Iowa Code § 321J.2(4)(a). Thus, Williams's sentence is cloaked in a strong presumption in its favor. However, on appeal, Williams points to the court's decision to sentence him in excess of what the plea bargain set out, arguing it was because the court considered unproven allegations involving his alleged use of alcohol and cocaine and thus, the court abused its discretion. "[W]e will set aside a sentence and remand a case to the district court for resentencing if the sentencing court relied upon charges of an unprosecuted offense that was neither admitted to by the defendant nor otherwise proved." Sailer, 587 N.W.2d at 762 (quoting State v. Black, 324 N.W.2d 313, 315 (Iowa 1982)). And we will do so "when no facts before the court show the charges are valid and the defendant does not admit the additional charges." Id. In that instance, the defendant must make an affirmative showing that the court relied on the improper evidence. Id.
In making its sentencing decision, the court may consider "[t]he content and recommendation of the [PSI] report." Iowa R. Crim. P. 2.23(f)(4); State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 2000) ("In determining a defendant's sentence, a district court is free to consider portions of a [PSI] report that are not challenged by the defendant."); see also Iowa Code § 901.2(1) (authorizing the preparation of a PSI report and allowing the court to receive "any information which may be offered which is relevant to the question of sentencing"). In addition, the sentencing court may consider the portions of the minutes of testimony necessary to establish a factual basis for a guilty plea when determining an appropriate sentence. See State v. Gonzalez, 582 N.W.2d 515, 517 (excluding only the portions of the minutes not necessary to establish a factual basis for the plea); Black, 324 N.W.2d at 316 ("We have approved using the minutes to establish a factual basis for the charge to which the defendant pleads guilty."). At the same time, "[t]he sentencing court should only consider those facts contained in the minutes that are admitted to or otherwise established as true." Black, 324 N.W.2d at 316. "Where portions of the minutes are not necessary to establish a factual basis for a plea, they are deemed denied by the defendant and are otherwise unproved and a sentencing court cannot consider or rely on them." Gonzalez, 582 N.W.2d at 517.
Here, Williams draws a narrow focus to what the court could consider, pointing to selected facts related to the proven and prosecuted offense for which he was being sentenced. Specifically, Williams argues that because in his written plea of guilty he only admitted to a "detectable level of marijuana in his system," the court could not consider the presence of either alcohol or cocaine when deciding the appropriate sentence for his OWI, second offense conviction. To this point, we note the PSI report contained information gleaned from Williams where he "[a]dmitted he was under the influence of alcohol at the time the instant and pending offense occurred. He explained, 'I had a little bit of both.'" He did not specify what "both" stood for, but did later admit to the "detectable amount of marijuana" in his written guilty plea. Still, he told the PSI evaluator he was not intoxicated at the time of his arrest, and he was not "under the influence of any illegal drugs at the time" of the offense. In that way he also did not specify which substances he was disavowing, but did not affirmatively admit to an intoxicating amount of alcohol or any "illegal drug" besides marijuana. Thus, the court may have considered some presence of alcohol and the presence of marijuana, but not of cocaine.
A charge is "unproven and unprosecuted" if it was dismissed. See, e.g., State v. Sinclair, 582 N.W.2d 762, 765 (Iowa 1998) (vacating and remanding when the court considered charges that were dismissed as part of the plea agreement); Gonzalez, 582 N.W.2d at 516 (same); Black, 324 N.W.2d at 315 (same). Here, the court would have considered this improper information if it had relied on the three additional charges that the State dismissed as part of the plea agreement with Williams; it would not have done so if it considered the OWI, second offense charge for which it was sentencing Williams.
And, what drug Williams may have been using does not get any clearer in the record before the court at the time of sentencing. In the January PSI report, Williams was quoted as admitting he had used marijuana two weeks prior to the interview. Regarding the presence of cocaine, Williams also admitted to the PSI preparer to using cocaine in March 2022, the month of his arrest, but not on the night of his arrest specifically. At the March sentencing hearing, because of his marijuana use, Williams informed the court it would have to be continued because he "would test dirty if he provided a UA." Then, in the March PSI addendum, Williams admitted he had smoked marijuana in early March. Nowhere in the PSI, nor in Williams's guilty plea, does he admit to cocaine use or an amount of alcohol above the legal limit in his system the night of his arrest for the charge.
Furthermore, at the June sentencing hearing, Williams did object to any consideration of his use of alcohol by the court, arguing that there was not even an order after the plea was accepted that he abstain from the use of alcohol. Specifically, Williams objected to the recommendation for prison "when [the PSI report] cites to behavior that Mr. Williams was lawfully allowed to engage in, which is alcohol." And Williams's counsel narrowed the concern with limiting the court's consideration to only what Williams pled to:
And you [the Court] and I have both seen hundreds of PSIs. I agree with you on that. But I've also been in front of you and I've sat in the back of the room, and I have listened to you at sentencing. And I know one thing that you take into great consideration when you impose sentence is the level of the blood alcohol at the time of the offense. And I think that is important.
And what we have in this situation is Mr. Williams pled guilty to operating with any amount of a detectable substance, which was marijuana. Okay. And if we look at what was actually in his system, we had, of the active component, 3 nanograms per milliliter. There's only 2 nanograms below that. And I can tell you, and the Court, I'm sure, is familiar with all the nanograms that we've seen above, and it goes to the hundreds of active ingredients. We have 30-some of the metabolite that was in his system, which is the inactive.
And I actually had to go do the research to find out exactly what Delta 9 was, or the carboxy THC. It has no impairment effect whatsoever. It's the residual amount of THC; THC that can be in your system for months. So that's what we have here.
We have a situation where Mr. Williams pled to having 3 nanograms, or milliliters, any amount of the active THC, and 32 nanograms, or milliliters, of metabolite, the inactive amount that doesn't cause impairment. And I understand that under the law there is no excuse. Certainly we hear it. But what we also consider are, you know, facts to which somebody pleads. And if you have 3 nanograms per milliliter, that is about as low as it can get.
Yet, the court referenced information, namely the .069% BAC and the cocaine metabolites, that Williams did not admit to and were not contained within the PSI or addenda. In response to the objection, the court noted that the PSI report was "somewhat inaccurate." And to be clear the court clarified:
But your client never admitted to me that he was using alcohol. The only thing he admitted to me was he was using drugs. So I don't know where the alcohol, unless he told the PSI writer, by the way, I continued to drink while I'm waiting for my sentencing hearing. I don't know if he told them that or not. It doesn't specifically say that.
Thus the court acknowledged that alcohol use was unadmitted to by Williams. But, the court went further and said: "your client was using drugs. Those are illegal all the time. So let's be - realistic . . . Certainly can't consume illegal drugs." When addressing Williams directly the court telegraphed its reasoning for the sentence:
You know, you talk a good game. The question is whether you can walk the walk. Even while you're waiting for the case to get concluded, you can't stop using drugs. That's the concern I have. Yes. So maybe for the last 60 days you've been able to do it, because you knew the world was coming down on your shoulders. The question is whether or not you have the intestinal fortitude to do it going forward. And none of us in this room know that right now, because all of our crystal balls are broken. Only you know whether or not you have the intestinal fortitude to actually do that. Time will tell.(Emphasis added).
The problem here is that it is unclear what drugs the court is referring to as the basis for its sentencing decision. While Williams may have admitted to some alcohol and cocaine use, he did not admit to the amount of alcohol that the sentencing court pronounced and did not admit to any cocaine use on the night of the instant offense. Yet, the court made clear that the drug use was the basis for its sentencing, and we cannot tell whether the "drugs" it refers to means the admitted-to marijuana use or cocaine. And, although facts establishing cocaine use are contained in the blood test results attached to the minutes of testimony, "[w]here portions of the minutes [of testimony] are not necessary to establish a factual basis for a plea, they are deemed denied by the defendant and are otherwise unproved and a sentencing court cannot consider or rely on them." See Gonzalez, 582 N.W.2d at 517.
"If a court in determining a sentence uses any improper consideration, resentencing of the defendant is required, even if it was merely a secondary consideration." State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (internal quotation marks and citation removed). Because "we cannot speculate about the weight the sentencing court gave to these unknown circumstances . . . we must strike down the sentence." Black, 324 N.W.2d at 316; see also State v. Martin, No. 22-0021,2023 WL 386717, at *2 (Iowa Ct. App. Jan. 25, 2023) (vacating and remanding for resentencing when the sentencing court considered unproven facts contained in the minutes of testimony). Such impermissible sentencing factors include "a defendant's invocation of [his] right to put the state to its burden of proving the offense" or unproven criminal offenses. State v. West Vangen, 975 N.W.2d 344, 355 (Iowa 2022). Therefore, because we find that the court relied on unproven facts in pronouncing Williams's sentence, we must vacate and remand for resentencing. See State v. Campie, No. 22-1075, 2023 WL 7391665, at *5 (Iowa Ct. App. Nov. 8, 2023) (reversing and remanding for resentencing when the court considered the entire minutes when the defendant gave a written statement of correction, omission, and additions to the PSI).
IV. Conclusion.
Because the court relied on unproven facts in making the sentencing decision, it considered an inappropriate matter, and we vacate the sentence imposed and remand for resentencing in front of a different judge.
VACATED AND REMANDED FOR RESENTENCING.