State of Iowa v. Peter William Triervieler ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0024
Filed February 8, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PETER WILLIAM TRIERVIELER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi
Ackley, Judge.
Peter Triervieler appeals from his sentences following his guilty pleas to
child endangerment, domestic abuse assault, and operating while intoxicated.
SENTENCES VACATED AND REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Ahlers, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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AHLERS, Judge.
Pursuant to a plea agreement resolving three cases, Peter Triervieler
pleaded guilty to: (1) child endangerment resulting in bodily injury, a class “D”
felony, in violation of Iowa Code section 726.6(6) (2018); (2) domestic abuse
assault by impeding normal breathing, a class “D” felony, in violation of Iowa Code
section 708.2A(5) (2020); and (3) operating while intoxicated (OWI), a serious
misdemeanor, in violation of Iowa Code section 321J.2(1), (2)(a) (2021). The court
sentenced him to indeterminate prison terms not to exceed five years on both the
child-endangerment and domestic-abuse-assault charges and sentenced him to
365 days of incarceration on the OWI charge. The two five-year sentences were
ordered to be served consecutively to each other but concurrent to the sentence
on the OWI, resulting in an indeterminate prison term not to exceed ten years.
Triervieler appeals. He contends the court abused its discretion by
(1) mistakenly believing one or both of the felony charges were forcible felonies for
which the sentences could not be suspended and (2) relying on unproven
allegations when imposing consecutive sentences.
We have jurisdiction to hear this appeal despite the fact that Triervieler
pleaded guilty because he has established good cause by challenging his
sentences and not the guilty pleas. See Iowa Code § 814.6(1)(a)(3) (foreclosing
the right to appeal following a guilty plea except for appeals from a class “A” felony
or “in a case where the defendant established good cause”); State v. Damme, 944
N.W.2d 98, 105 (Iowa 2020) (“[G]ood cause exists to appeal from a conviction
following a guilty plea when the defendant challenges his or her sentence rather
than the guilty plea.”). Our review of criminal sentencing is for correction of errors
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at law. State v. Wilbourn, 974 N.W.2d 58, 65 (Iowa 2022). We only vacate a
sentence if there is an abuse of discretion or a defect in the sentencing procedure.
Id.We begin by addressing Triervieler’s claim that the district court mistakenly
believed one or both of the felony charges were forcible felonies. This is important
because, if a charge is a forcible felony, the court has no discretion to suspend the
prison sentence. See Iowa Code § 907.3 (providing for deferred judgments,
deferred sentences, and suspended sentences, but making them inapplicable to
forcible felonies). If the sentencing court believes it has no discretion to suspend
a sentence when, in fact, it does, the court cannot be said to have exercised its
discretion, so the sentence must be vacated and remanded for resentencing. See
State v. Davison, 973 N.W.2d 276, 289 (Iowa 2022) (“But when the sentencing
court fails to exercise discretion because it ‘was unaware that it had discretion,’ we
typically vacate and remand for resentencing.” (quoting State v. Moore, 936
N.W.2d 436, 440 (Iowa 2019))). The rule requiring vacation of the sentence and
remand applies to a mistaken belief that a charge is a forcible felony. Davison,
973 N.W.2d at 289.
There is no dispute that the two felony charges here were not forcible
felonies. See Iowa Code § 702.11(2)(e) (excluding child endangerment in violation
of section 726.6(6) from the category of a forcible felony), (g) (excluding domestic
abuse assault in violation of section 708.2A(5) from the category of a forcible
felony). So we must decide whether the court mistakenly believed one or both of
the charges were forcible felonies—or for some other reason mistakenly believed
suspended sentences were not an option.
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Piecing the record together suggests the court made this mistake. The
same judge presided at both the plea and sentencing hearings. During the plea
hearing, the court asked Triervieler, “You understand that this is not subject to a
suspension, this is actual prison time?” After Triervieler indicated he was aware
of that, the court continued, “So you understand that after sentencing occurs, the
court will be ordering that the sheriff transport you to the Iowa Medical and
Classification Center and there deliver you for purposes of serving this term?”
Then, at the sentencing hearing, after imposing the sentences, the court, in
discussing bail on appeal, stated the belief that “this is a forcible felony.”
The two questions at the plea hearing coupled with the statement made at
the sentencing hearing convinces us that the court mistakenly believed it had no
discretion to suspend the felony sentences. The State argues that, since the
statement at the sentencing hearing expressing a belief that one or both of the
felony charges were forcible felonies was made after the sentence had already
been imposed, it is of lessened importance because the sentencing decision had
already been made. We are not persuaded by this argument for the same reasons
the supreme court rejected a similar argument in Davison. Facing essentially the
same argument in Davison, the supreme court observed:
Here the State tries to thread a needle. It acknowledges that the
district court may have misunderstood whether the [felony charge at
issue] was a forcible felony when bond on appeal was discussed, yet
claims that the district court didn’t misunderstand the situation
several minutes earlier when it sentenced [the defendant] to prison.
973 N.W.2d at 289. The court rejected the attempt to thread the needle and noted
“prudence dictates that we should vacate [the defendant]’s prison sentence and
remand for resentencing.” Id.
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Like the supreme court in Davison, we are not persuaded that the district
court incorrectly believed that suspended sentences were not an option during the
plea hearing and at the end of the sentencing hearing yet correctly believed it had
the option of suspended sentences in between those two events when the
sentencing decision was made. Also like the supreme court in Davison, we believe
prudence dictates that we should vacate Triervieler’s sentences and remand for
resentencing. See id. Such resentencing shall be before a different judge. See
State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (providing that resentencing on
remand be before a different judge “to protect the integrity of our judicial system
from the appearance of impropriety”).
Having decided resentencing is required based on the first issue and that
resentencing shall take place before a different judge, we need not address the
issue of whether the court considered improper factors. That said, it appears that
the court did consider improper factors by referencing unproven allegations which
were not admitted by Triervieler or otherwise established. See State v. Black, 324
N.W.2d 313, 316 (Iowa 1982) (“The sentencing court should only consider those
facts contained in the minutes that are admitted to or otherwise established as
true.”). We trust that the judge resentencing Triervieler on remand will consider
only proper factors.
We vacate the sentences imposed and remand for resentencing before a
different judge.
SENTENCES VACATED AND REMANDED FOR RESENTENCING.