Amended June 24, 2015 State of Iowa v. Tina Lynn Thacker ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 14–0374
Filed April 17, 2015
Amended June 24, 2015
STATE OF IOWA,
Appellee,
vs.
TINA LYNN THACKER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, James D.
Birkenholz, District Associate Judge.
The defendant seeks further review of a court of appeals decision
affirming her conviction and sentence of second-degree harassment
following a guilty plea. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT SENTENCE VACATED AND CASE REMANDED
WITH INSTRUCTIONS.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin J. Bell,
Assistant County Attorney, for appellee.
2
APPEL, Justice.
In this case, we must decide two questions related to the
sentencing of the defendant. The first question is whether the district
court complied with Iowa Rule of Criminal Procedure 2.23(3)(d) in
sentencing the defendant after she pled guilty pursuant to a plea bargain
when the sentencing order does not contain the provisions of the plea
bargain. The second question is whether the district court improperly
accepted the guilty plea without first determining that the defendant’s
plea was made voluntarily and intelligently and had a factual basis as
required by Iowa Rule of Criminal Procedure 2.8(2)(b). For the reasons
expressed below, we conclude the district court’s sentencing order does
not comply with Iowa Rule of Criminal Procedure 2.23(3)(d), and as a
result, we vacate the sentence and remand the matter to the district
court for resentencing. With respect to the defendant’s claim that her
plea was not voluntary, we conclude the issue cannot be resolved in this
direct appeal and therefore reserve this claim for a postconviction-relief
action.
I. Factual and Procedural Background.
The minutes of testimony in this case state that on October 4,
2013, a supervisor at the Des Moines Area Regional Transit facility
notified police regarding a customer, Tina Thacker, who was screaming
profanities at customer service. As the supervisor tried to calm her
down, Thacker saw a bus driver, Donald Robuck, which caused her to
renew her screaming. Among other things, she screamed she was going
to find out where Robuck lived. The minutes state Robuck had been the
driver of a bus boarded by Thacker. When Thacker asked Robuck to
turn on the air conditioner, the system blew out hot air. Thacker then
became incensed, used obscenities, and threatened to kill Robuck.
3
Thacker was charged by trial information with harassment in the
first degree, an aggravated misdemeanor, in violation of Iowa Code
section 708.7(2) (2013). The charge was apparently resolved by a plea
agreement.
The plea agreement, however, is not part of the record. What is
part of the record is a form entitled “Petition to Plead Guilty to Serious
Misdemeanor.” The form contains an entry stating “the plea agreement
is:” but nothing was entered on the lines provided. The terms of the plea
agreement were left blank. There is nothing in the record to indicate
whether this was an intentional or unintentional omission. The
defendant waived her right to have the proceedings recorded.
On the same day the Petition to Plead Guilty to Serious
Misdemeanor was filed, the district court, also using a form, accepted the
plea agreement and imposed a sentence. The form contained the
following boilerplate language: “The following sentence is based on all of
the available SENTENCING CONSIDERATIONS set out in Iowa Code
Section 907.5.” The district court checked the box “The Plea Agreement”
as being the factor that was “the most significant in determining [the]
particular sentence.”
The district court ordered Thacker to serve one year in jail but
suspended the sentence. The district court placed Thacker on probation
for a period of one year with the Iowa Department of Correctional
Services. The district court imposed conditions of probation which
required Thacker to (1) complete any recommended substance abuse
treatment, (2) cooperate and complete a VORP (Victim-Offender
Reconciliation Program) session with each victim who so desires, (3)
complete an assaultive behavior class, (4) participate in substance abuse
monitoring by urine analysis during the term of probation, and (5)
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complete a psychological evaluation and follow through with any
recommended treatment. The district court further dismissed a related
simple misdemeanor charge and ordered Thacker not to have contact
with the victim for a period of five years. Additionally, the district court
ordered Thacker to pay a fine of $315, the statutory surcharges,
restitution, court costs, and attorney fees. Thacker appealed. We
transferred the case to the court of appeals.
On appeal, Thacker raised two issues. First, she claimed the
district court erred by not stating adequate reasons on the record for the
exercise of the district court’s sentencing discretion as required by Iowa
Rule of Criminal Procedure 2.23(3)(d). Second, she claimed she received
ineffective assistance of counsel because she did not knowingly and
voluntarily enter into her plea agreement.
A divided court of appeals rejected Thacker’s arguments. With
respect to the claim that the district court failed to give adequate reasons
for her sentence, the court of appeals held that the district court was
merely giving effect to the parties’ agreement and that no further
statement of reasons was required. On the question of whether she
received ineffective assistance of counsel because she did not intelligently
and voluntarily enter into the plea agreement, the court of appeals held
that Thacker failed to show prejudice. A dissent asserted the district
court abused its discretion in citing a plea agreement as its reason for
the sentence, when no plea agreement was apparent in the record. The
dissent further took the position that the record was inadequate to
resolve the ineffective-assistance-of-counsel claim.
We granted further review. For the reasons expressed below, we
now vacate Thacker’s sentence and remand the case to the district court
for further proceedings. We also conclude the record is inadequate to
5
resolve the ineffective-assistance claim on direct appeal and reserve that
claim for a postconviction-relief action.
II. Standard of Review.
A. Review of District Court Sentencing Order. When “the
sentence imposed is within the statutory maximum, we will only interfere
if an abuse of discretion is shown.” State v. Luedtke, 279 N.W.2d 7, 8
(Iowa 1979). In exercising discretion, the district court must “weigh all
pertinent matters in determining a proper sentence, including the nature
of the offense, the attending circumstances, the defendant’s age,
character, and propensities or chances for reform.” State v. Johnson,
476 N.W.2d 330, 335 (Iowa 1991). Errors in sentencing, including
contentions the trial court failed to articulate adequate reasons for a
particular sentence, “may be challenged on direct appeal even in the
absence of an objection in the district court.” State v. Lathrop, 781
N.W.2d 288, 292–93 (Iowa 2010).
B. Ineffective Assistance of Counsel. “We review ineffective
assistance of counsel claims de novo.” State v. Williams, 574 N.W.2d
293, 300 (Iowa 1998). When a defendant seeks to have an ineffective-
assistance claim resolved on direct appeal, the defendant must establish
that the record is adequate to allow the appellate court to determine the
issue. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). If the
record is inadequate on appeal, the issue must be addressed in an action
for postconviction relief. Id.
III. Discussion of On-the-Record Disclosure of Reasons for
Sentencing.
A. Background to Iowa Rule of Criminal Procedure 2.23(3)(d).
Unlike most European countries in which judicial sentences are
reviewable as a matter of law, appellate courts in the United States have
6
historically adopted a hands-off approach to criminal sentencing. See
Ronald M. Labbe, Appellate Review of Sentences: Penology on the Judicial
Doorstep, 68 J. Crim. L. & Criminology 122, 122 (1977) [hereinafter
Labbe]. In the 1960s and 1970s, considerable attention in professional
and academic communities was devoted to considering the relatively
uncontrolled nature of criminal sentencing in our courts. 1 Judge Simon
E. Sobeloff of the United States Court of Appeals for the Fourth Circuit
stimulated the debate through his academic writings and public
remarks. See Remarks of Judge Sobeloff, Appellate Review of Sentences:
A Symposium at the Judicial Conference of the United States Court of
Appeals for the Second Circuit, 32 F.R.D. 249, 264–75 (1962); Simon
Sobeloff, A Recommendation for Appellate Review of Criminal Sentences,
21 Brook. L. Rev. 2 (1955); Simon E. Sobeloff, The Sentence of the Court:
Should There Be Appellate Review?, 41 A.B.A. J. 13 (1955).
In the early 1970s, the torch of reform was carried by Judge
Marvin Frankel who, in a seminal law review article, canvassed what he
called “lawlessness in sentencing.” Marvin E. Frankel, Lawlessness in
Sentencing, 41 U. Cin. L. Rev. 1 (1972). Among other things, Judge
Frankel emphasized the advantages of giving reasons for discretionary
sentencing. Frankel noted “the giving of reasons helps the decision-
maker himself in the effort to be fair and rational, and makes it possible
for others to judge whether he has succeeded.” Id. at 9. Similar
observations were made by Judge Irving Kaufman, who noted that
explanations of sentences “would exert a beneficial influence to
1The Iowa Law Review published one major article participating in the
commentary. See Michael C. Berkowitz, The Constitutional Requirement for a Written
Statement of Reasons and Facts in Support of the Sentencing Decision: A Due Process
Proposal, 60 Iowa L. Rev. 205 (1974) [hereinafter Berkowitz].
7
rationalize the procedure which now is too easily characterized as
capricious,” Irving R. Kaufman, Foreword: The Sentencing Process and
Judicial Inscrutability, 49 St. John’s L. Rev. 215, 222 (1975), and would
give some reassurance to the criminal “that his liberty is not being
revoked in a wholly arbitrary fashion,” id. at 221.
The notion that judges should state their reasons for sentencing on
the record gained professional support. As early as 1968, the American
Bar Association proposed that sentencing judges be required to state
their reasons for selection of a sentence on the record so that a court
could exercise its power of judicial review. See ABA Project on Standards
for Criminal Justice, Standards Relating to Appellate Review of Sentences
§ 2.3(c) & cmt. e, at 42, 47 (1968) (noting that “a statement of reasons
will be invaluable as an aid to the reviewing court [as] it is difficult to see
how meaningful review can occur . . . where the appellate court is left
completely in the dark as to why the sentence under review was
imposed”). The adoption of the ABA Standards led to a reconsideration
of the approach to sentencing in a number of states. See Labbe, 68 J.
Crim. L. & Criminology at 123 (canvassing trends).
In the 1970s, we considered whether to adopt an ABA-type rule.
In State v. Horton, 231 N.W.2d 36, 40–42 (Iowa 1975) (McCormick, J.,
concurring specially), Justice McCormick wrote a special concurrence in
which he advocated adoption of a requirement that district court judges
express reasons for sentencing on the record. Justice McCormick
emphasized the anomaly that, with respect to sentencing, “the exercise of
this power, among the greatest that one person may exercise over the life
of another, is virtually unreviewable.” Id. at 40. He noted four basic
reasons for the adoption of the requirement that the reasons for
sentencing be placed on the record: (1) increasing the rationality of
8
sentencing, (2) the therapeutic value of sentencing on the defendant, 2 (3)
ensuring meaningful appellate review of the sentence, and (4) informing
correctional authorities of the reasoning behind a sentence. Id. at 41.
He further noted that a requirement that a district court state reasons
for sentencing on the record could promote consistency and assist in the
rational development of uniform sentencing. Id. 3
Nonetheless, in the 5–4 decision in State v. Peckenschneider, 236
N.W.2d 344, 348 (Iowa 1975) (en banc), we declined to adopt the ABA
approach and require district courts to express reasons for sentencing on
the record. Justice McCormick wrote the dissenting opinion, reprising
the reasoning of his Horton special concurrence. Compare id. at 348–56
(McCormick, J., dissenting), with Horton, 231 N.W.2d at 40–42. In State
v. Harvey, 236 N.W.2d 47, 49 (Iowa 1975) (McCormick, J., specially
concurring), an opinion released on the same day as Peckenschneider,
Justice McCormick again wrote a concurring opinion, stating that our
refusal to accept ABA standards as mandatory criteria to be applied in
sentencing “permits perpetuation of the inequities, disparities, and
2See generally Jerry L. Mashaw, Due Process in the Administrative State 199
(1985) (emphasizing that some sort of explanation for a decision remains necessary if
we are to conceive genuinely of the individual as an “autonomous moral agent entitled
to self-respect”).
3Recent scholarship has emphasized the role of sentence explanation in limiting
the appearance of bias and lessening the risk of cognitive bias, including racial bias.
See Berkowitz, 60 Iowa L. Rev. at 208–09, 233–34 (noting role of written explanation in
addressing perception and reality of racial bias); Chris Guthrie, Jeffrey J. Rachlinski, &
Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev.
1, 36–38 (2007) (suggesting that requiring explanations should induce deliberation and
reduce intuitive or impressionistic reactions that may be biased); Michael M. O’Hear,
Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal
Experiences, 93 Marq. L. Rev. 751, 759–60 (2009) (noting that requiring judges to
explain the basis for their decisions tends to increase perception of neutrality, mitigate
against cognitive bias, and lead to better consideration of the full range of information).
9
unfairness which have led to substantial justified criticism of sentencing
practices.”
While Justice McCormick’s views did not prevail in our court, the
legislature took action. In 1977, the legislature enacted a statutory
provision, which provided that “[t]he court shall state on the record its
reason for selecting the particular sentence.” 1977 Iowa Acts ch. 153,
§ 66 (currently found in Iowa R. Crim. P. 2.23(3)(d)).
B. Caselaw Under Iowa Rule of Criminal Procedure 2.23(3)(d).
We have been called upon to interpret and apply Iowa Rule of Criminal
Procedure 2.23(3)(d) in a number of cases. Many have noted that by
requiring reasons for a particular sentence to be on the record, a
reviewing court will be able to assess whether there has been an abuse of
discretion in sentencing. See State v. Thompson, 856 N.W.2d 915, 919
(Iowa 2014); State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996). We have
noted that without such a record “we could [not] discern [whether there
had been] any abuse of sentencing discretion.” Luedtke, 279 N.W.2d at
8. It is apparent from the cases that one of the important reasons for the
rule is to preserve the appellant’s right to challenge the exercise of
discretion by the sentencing judge. See id. We have also recognized the
value of particularized statements in ensuring criminal defendants are
aware of the consequences of their criminal actions. See Thompson, 856
N.W.2d at 919; State v. Lumadue, 622 N.W.2d 302, 305 (Iowa 2001) (en
banc).
While the rule requires a statement of reasons on the record, a
“terse and succinct” statement may be sufficient, “so long as the brevity
of the court’s statement does not prevent review of the exercise of the
trial court’s sentencing discretion.” State v. Johnson, 445 N.W.2d 337,
343 (Iowa 1989). A terse and succinct statement is sufficient, however,
10
only when the reasons for the exercise of discretion are obvious in light of
the statement and the record before the court. See, e.g., State v. Victor,
310 N.W.2d 201, 205 (Iowa 1981) (noting it was “clear from the trial
court’s statement exactly what motivated and prompted the sentence”
(emphasis added)). When the reasons for a particular sentence have not
been stated on the record, however, we have vacated the sentence and
remanded the case to the district court for resentencing. See, e.g., State
v. McKeever, 276 N.W.2d 385, 388–90 (Iowa 1979); State v. Thompson,
275 N.W.2d 370, 372 (Iowa 1979).
We have rejected a boilerplate-language approach that does not
show why a particular sentence was imposed in a particular case. In
Lumadue, 622 N.W.2d at 304, we considered boilerplate language in a
written order that provided, “The court has determined that this sentence
will provide reasonable protection of the public. Probation is denied
because it is unwarranted.” We concluded such language, standing
alone, did not satisfy the requirement that the district court make an on-
the-record statement of reasons for imposing a particular sentence. Id.
at 304–05. 4
In a somewhat similar vein, the court of appeals in State v. Cooper,
403 N.W.2d 800, 802 (Iowa Ct. App. 1987), considered the statement:
“[t]he Court has reviewed the circumstances of the offense, and the
4A leading federal appellate decision relating to such boilerplate language is
United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005). In Cunningham, Judge
Posner rejected the position that a judge could employ a stamp which declared that he
or she had considered the statutory factors required in sentencing. Id. at 676. Such a
position, according to Judge Posner, was inconsistent with appellate review of
sentences. Id. at 679. The decision in Cunningham has been undermined, however, by
Rita v. United States, 551 U.S. 338, 357–59, 127 S. Ct. 2456, 2469, 168 L. Ed. 2d 203,
218–19 (2007), in which the Supreme Court found that implicit explanation of
sentences may be sufficient to affirm the reasonableness of a sentence under federal
law.
11
defendant’s prior background.” The court of appeals held that such
vague and generalized comments were inadequate under the rule. Id.
The Cooper court emphasized that “appellate courts should not be forced
to rely on post hoc attempts at divining the district court’s motivation
from the entirety of the record in order to determine if the district court
abused its discretion.” Id.
We have also considered what the rule requires in the context of a
plea bargain. In State v. Snyder, 336 N.W.2d 728, 729 (Iowa 1983), the
defendant entered a plea bargain with the state. There was no claim the
state or the court departed from the terms of the plea bargain. See id.
We held that a statement of reasons for the sentence was not required
because “[t]he sentence of imprisonment was . . . not the product of the
exercise of trial court discretion but of the process of giving effect to the
parties’ agreement.” Id. Similarly, in State v. Cason, 532 N.W.2d 755,
756–57 (Iowa 1995) (per curiam), we again considered the impact of a
plea bargain on the district court’s obligation to state on the record the
reasons for a particular sentence. We held that a sentencing court does
not abuse its discretion for failing to state sufficient reasons for imposing
a sentence if it “was merely giving effect to the parties’ agreement.” Id.
In contrast to Snyder and Cason, in Thompson, 856 N.W.2d at
917–18, we considered a case in which the district court elected not to
follow the sentence agreed to by the parties in a plea bargain. In this
setting, we held the district court was required to state on the record his
or her reasons for exercising his or her discretion in imposing a sentence
different from that agreed to by the parties. Id. at 920–21.
The failure of the district court to adequately cite its reasons for a
sentence on the record is ordinarily reversible error. See, e.g., Lumadue,
622 N.W.2d at 304–05 (remanding for resentencing when trial court used
12
boilerplate language in sentencing order which did not adequately state
reasons related to “this” defendant and “this” offense); Uthe, 542 N.W.2d
at 816 (requiring resentencing when court failed to adequately explain its
imposition of consecutive sentences); Cooper, 403 N.W.2d at 802
(vacating sentence and remanding for resentencing after finding
sentencing record inadequate); see also Commonwealth v. Johnson, 541
A.2d 332, 340 (Pa. Super. Ct. 1988) (noting failure to provide adequate
“statement of reasons for the sentence imposed is reversible error
requiring resentencing”). One of the main purposes of requiring specific
reasons is to provide a record sufficient to allow meaningful appellate
review, see, e.g., Uthe, 542 N.W.2d at 816; Luedtke, 279 N.W.2d at 8,
which is afforded as a matter of right to most criminal defendants, see
Iowa R. Crim. P. 2.23(3)(e) (detailing notification of right to appeal
regarding indictable offenses); id. r. 2.73(1) (noting the appropriate
procedures regarding a right to appeal in a simple misdemeanor case).
There have, however, been unusual circumstances when we have
applied a harmless error approach to cases in which the district court
failed to state its reasons on the record. In State v. Matlock, 304 N.W.2d
226, 228 (Iowa 1981), we held a district court that failed to state its
reasons on the record did not commit reversible error when it sentenced
the defendant to the least severe sentence authorized by law. A remand
for resentencing in Matlock could not possibly have benefited the
defendant under these narrow circumstances.
In one other case, State v. Alloway, 707 N.W.2d 582, 587 (Iowa
2006), overruled by Thompson, 856 N.W.2d at 921, we rejected an appeal
involving a claim the trial court did not adequately state reasons on the
record for a sentence for lack of prejudice. The defendant’s claim in
Alloway, however, was presented as a claim of ineffective assistance of
13
counsel in which a showing of prejudice is ordinarily required. Id. In
Alloway, we applied the rule that a defendant who waives the making of
a record of sentencing must take steps to create an alternate record
through a bill of exceptions or a supplemental statement. Id. at 586. In
Thompson, 856 N.W.2d at 921, however, we reversed the caselaw upon
which Alloway was based. The Alloway approach requiring a showing of
prejudice thus has no continued vitality.
C. Application of Principles. The State suggests Thacker failed
to preserve error in this case by failing to address the lack of record by
either requesting a bill of exceptions or expanding the record pursuant to
the rules of appellate procedure. We took such an approach in Alloway
based on prior precedent. During the pendency of this case, however, we
overruled the Alloway approach in Thompson, 856 N.W.2d at 921. In
Thompson, we declared that the responsibility to develop the record
rested with the court, not one of the parties. Id. As a result, the State’s
argument on this point is without merit.
We next turn to language in the sentencing order form. The
district court order is on a form that states in boilerplate fashion that the
district court considered all the relevant factors required by law in
imposing the sentence. It is clear under our precedents, however, that
such boilerplate language, standing alone, is insufficient to satisfy Iowa
Rule of Criminal Procedure 2.23(3)(d). See Lumadue, 622 N.W.2d at
304–05. The boilerplate form is identical for all cases and tells us
nothing about how the district court arrived at a particular sentence in a
particular case. See id.; Cooper, 403 N.W.2d at 802.
Here, the district court checked the box for “The Plea Bargain” as
the most significant factor in its sentencing decision. The question
arises, then, whether this case falls within the Snyder-Cason principle
14
that when a district court simply imposes a sentence agreed to by the
parties it does not exercise discretion in a fashion that requires a
statement of reasons on the record.
The problem with this theory, however, is that we do not know
from the record whether the particulars of the district court’s sentence
were agreed to by the parties. Although we know there is a plea
agreement of some kind, the Petition to Plead Guilty to Serious
Misdemeanor is silent on the terms of the plea agreement. What we
simply do not know is whether the plea bargain had an agreed upon
recommendation for the sentence or whether the parties only agreed that
the State would drop the more serious harassment charge if the
defendant pled guilty to a lesser offense. While the district court
considered the plea agreement in its sentence, apparently, the
consideration given could have been that the more serious charge had
been dismissed and the only crime for which the defendant should be
sentenced was now a serious misdemeanor. Further, even if there was
an agreed upon recommendation for sentencing, we do not know from
the record whether the district court followed it in every particular or
deviated from it in some respects. We are left to speculate on these
questions.
As a result, we cannot conclude the district court has adequately
stated reasons for its sentence on the record as required under Iowa Rule
of Criminal Procedure 2.23(3)(d). While terse reasoning can be adequate
when we know the statement in the context of the record demonstrates
what motivated the district court to enter a particular sentence, see
Johnson, 445 N.W.2d at 343, we cannot guess or simply calculate the
rough probabilities. Looking on the record, we do not know whether the
district court exercised its discretion, simply accepted the parties
15
agreement, or did a little of both. We therefore vacate the sentence and
remand the matter to the district court for further proceedings.
On remand, if the district court determines it merely gave effect to
the parties’ agreement and exercised no discretion in sentencing other
than to accept the plea agreement as advanced by the parties, it should
make the particulars of the plea agreement with respect to the sentence a
part of the record. See Matlock, 304 N.W.2d at 228 (“If the court has no
discretion in sentencing, it should so state.”). If, on the other hand, the
parties did not come to an agreement with respect to the particulars of
the sentence or the district court departed from any agreement the
parties may have had, then the district court exercised discretion and, as
a result, must make a statement on the record as to why it exercised its
discretion in the way it did. On remand, there is no requirement the
district court arrive at a different sentence, but only that it satisfy the
requirements of Iowa Rule of Criminal Procedure 2.23(3)(d).
IV. Knowing and Voluntary Guilty Plea.
Iowa Rule of Criminal Procedure 2.8(2)(b) requires the district court
to determine “that the [defendant’s] plea is made voluntarily and
intelligently and has a factual basis.” Thacker contends she did not
knowingly and voluntarily enter into the written plea bargain in this
case.
This case involves a serious misdemeanor. In State v. Meron, 675
N.W.2d 537, 543 (Iowa 2004), we held the district court, with the
defendant’s consent, may waive the in-court colloquy otherwise required
by Iowa Rule of Criminal Procedure 2.8(2)(b). Nonetheless, we
emphasized that allowing written waivers does not diminish the
importance and necessity of the court’s role to ensure each plea is
voluntary, intelligent, and supported by the facts. Id.
16
The record before us, however, simply does not allow us to
determine whether Thacker entered into the plea voluntarily and
intelligently. We also cannot determine on the record whether she was
prejudiced. As a result, we decline to address the ineffective-assistance-
of-counsel issue on direct appeal. A determination of the ineffectiveness
claim must be made in an action for postconviction relief to “allow a
record to be developed concerning the actual terms of the plea agreement
and [Thacker’s] understanding of the terms of the plea agreement.” State
v. Philo, 697 N.W.2d 481, 489 (Iowa 2005).
V. Conclusion.
For the above reasons, the sentence in this case is vacated and the
matter remanded to the district court for resentencing.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT SENTENCE VACATED AND CASE REMANDED WITH
INSTRUCTIONS.
All justices concur except Mansfield, J., Cady, C.J., and
Waterman, J., who dissent.
17
#14–0374, State v. Thacker
MANSFIELD, Justice (dissenting).
I respectfully dissent and would affirm Thacker’s sentence.
According to the minutes of testimony, this incident began when
Thacker was picked up at a bus route along Ingersoll Avenue in
Des Moines on October 4, 2013. Thacker told the bus driver, Donald
Robuck, that someone who owed her money had been chasing her. She
asked Robuck to turn on the air conditioning, but when he did so, the
system blew hot air. This incensed Thacker, who began calling Robuck a
“fat m***** f*****” and threatened to kill him.
On arrival at the bus depot in downtown Des Moines, Thacker
went to customer service and caused a disruption by screaming
profanities. Efforts to calm her down were unsuccessful. Thacker
attempted to follow Robuck and a supervisor outside, but got stuck in a
revolving door. She started kicking the door until it began to move.
When Thacker saw Robuck leaving for his next route, she screamed at
him that she was going to find out where he lived.
Thacker was charged with first-degree harassment, an aggravated
misdemeanor, and disorderly conduct, a simple misdemeanor. See Iowa
Code § 708.7(2) (2013); id. § 723.4(2). On February 7, 2014, the charges
were disposed of when Thacker pled guilty to the lesser included offense
of second-degree harassment, a serious misdemeanor, and received a
one-year suspended sentence and probation. See id. § 708.7(3). The
record includes Thacker’s petition to plead guilty to a serious
misdemeanor (which includes a written waiver of rights signed by her)
and the district court’s written sentencing order, which lists the plea
agreement as the only reason for the sentence imposed. The sentencing
18
order also indicates that Thacker waived reporting and recording of the
sentencing hearing.
The district court is required to state the reason or reasons for a
particular sentence on the record. See Iowa R. Crim. P. 2.23(3)(d) (“The
court shall state on the record its reason for selecting the particular
sentence.”). “The district court can satisfy this requirement by orally
stating the reasons on the record or placing the reasons in the written
sentencing order.” State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014).
However, as the majority acknowledges, when the defendant’s sentence
is based upon a plea agreement, the court provides a sufficient reason or
reasons when it cites the plea agreement as the reason for the sentence.
See State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995) (per curiam). The
district court did so here.
In Thompson, we overruled prior precedent and held that even
when a defendant waives reporting of the sentencing hearing, the
defendant does not thereby waive the requirement that the district court
provide the reason or reasons for the sentence on the record. See
Thompson, 856 N.W.2d at 920–21. The present case is not a Thompson
case. Unlike the sentencing order in Thompson, see id. at 918, the
sentencing order here states the reason for the sentence, namely, the
plea agreement, and that reason is a legally sufficient one.
Thacker, thus, wants to take Thompson a step further. She wants
to establish a rule that when the sentence is based on a plea agreement,
either the written plea agreement or the hearing transcript setting forth
the terms of the plea agreement must be included in the record. This is
intended to be a check so the appellate court can verify that the district
court did, indeed, follow the plea agreement in its sentencing order.
19
Whatever the potential merits of this rule in the abstract, I think it
makes no sense to apply it unless the defendant is asserting the
sentence did not comply with the plea agreement. Thacker makes no
such assertion. In fact, Thacker does not challenge her underlying
sentence at all, for example, by claiming it is too harsh or restrictive. All
we have here is her appellate attorney’s contention that one cannot tell
from the record whether the sentence imposed is actually consistent with
the plea agreement. Presumably, appellate counsel has asked Thacker,
or Thacker’s trial counsel, whether the sentence is consistent with the
plea agreement. The briefing should disclose the answer to this
question. Since sentencing proceedings come with a presumption of
regularity, see, e.g., State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001); State
v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998), it seems unfair to assume—
in the absence of any claim by the defendant—that an irregularity might
have occurred.
The court’s approach appears to elevate form over substance. That
is, it remands the case for expansion of the record even when the
defendant is not complaining about the result. The effect of the court’s
approach will be to require another layer of documentation in
misdemeanor cases. I think the limited resources of our criminal justice
system can best be deployed elsewhere.
For the foregoing reasons, I dissent.
Cady, C.J., and Waterman, J., join this dissent.