State of Iowa v. Tyler Howell ( 2015 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 14-1411
    Filed July 22, 2015
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    TYLER HOWELL,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Muscatine County, Joel W.
    Barrows (plea) and Paul L. Macek (sentencing), Judges.
    Tyler Howell appeals the sentence imposed upon his guilty plea.
    SENTENCE VACATED; REMANDED FOR RESENTENCING.
    Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
    Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney
    General, and Alan Ostergren, County Attorney, for appellee.
    Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
    2
    POTTERFIELD, J.
    Tyler Howell appeals from the sentence imposed upon his plea of guilty to
    the charge of lascivious acts with a child.1 Howell contends the district court
    erred in sentencing him because it considered improper factors, employed a
    fixed sentencing policy, failed to exercise its discretion because it was unaware
    that deferral of judgment was an available option, and did not properly consider
    all pertinent factors in sentencing the defendant who was a juvenile at the time
    the offense was committed.         Because the memorandum of plea agreement
    erroneously states a deferred judgment was not an available sentencing option,
    and nothing in this record indicates the sentencing court was aware of that
    option, we vacate the sentence and remand for resentencing.
    I. Scope and Standard of Review.
    We review a sentence in a criminal case for the correction of errors at law.
    State v. Kramer, 
    773 N.W.2d 897
    , 898 (Iowa Ct. App. 2009). “A sentence will not
    be upset on appellate review unless the defendant demonstrates an abuse of
    trial court discretion or a defect in the sentencing procedure, such as trial court
    consideration of impermissible factors.” State v. Loyd, 
    530 N.W.2d 708
    , 713
    (Iowa 1995). Where a court has discretion, it must exercise its discretion, and
    failure to do so requires vacation of the sentence and remand for resentencing.
    State v. Ayers, 
    590 N.W.2d 25
    , 27 (Iowa 1999).
    1
    On July 3, 2013, Howell was charged by trial information with three counts of second-
    degree sexual abuse, a class “B” felony, in violation of Iowa Code section 709.3(2)
    (2013). On June 13, 2014, Howell pled guilty to one count of lascivious acts with a child,
    in violation of section 709.8(3). That provision was renumbered as section 709.8(1)(d) in
    a chapter containing “nonsubstantive code corrections.” See 2013 Iowa Acts ch. 30,
    § 202.
    3
    II. Pertinent Facts and Discussion.
    As noted above, Howell makes several allegations of error on appeal.
    Because we find one issue dispositive—the availability of a deferred judgment as
    a sentencing option—we recite facts pertinent to that issue.
    On June 13, 2014, a memorandum of plea agreement was filed with the
    district court which states in part: “The defendant will plead guilty to an amended
    and substituted Trial Information which charges one count of Lascivious Acts with
    a Child in violation of 
    Iowa Code § 709.8
    (3)—class ‘D’ felony.”2 Further, the plea
    was “[o]pen” as to the sentencing disposition.         The memorandum of plea
    agreement    also   provides:   “Defendant    faces   a   maximum     sentence     of
    incarceration for a term not to exceed five years and a fine of $7500. Defendant
    is not eligible for a deferred judgment as the victim was under the age of twelve.
    See 
    Iowa Code § 907.3
    (1)(a)(13).”3 (Emphasis added.)
    During the June 13, 2014 guilty plea proceeding, Howell’s attorney
    explained that the defendant had been evaluated and it had been determined he
    had an I.Q. of about 70 and read at a fourth-grade level. Howell admitted that
    between November 2012 and March 2013, he solicited M.C. to engage in a sex
    act by requesting to touch M.C.’s genital area for purposes of sexual gratification.
    2
    An amended trial information was filed that same date accusing Howell of lascivious
    acts with a child, citing section 709.8(1)(d). See footnote 1.
    3
    2013 Iowa Acts chapter 90, section 214 amended section 907.3, moving what was
    previously paragraph (a) to subparagraph (1)(a)(13), which as amended reads:
    (a) With the consent of the defendant, the court may defer
    judgement and a place the defendant on probation upon conditions as it
    may require. . . . However, the court shall not defer judgment if any of the
    following is true:
    ....
    (13) The offense is a violation of section 709.8 and the child is
    twelve years of age or under.
    2013 Iowa Acts ch. 90, § 214.
    4
    M.C. was eight years old, and Howell was seventeen years old at the time of the
    offense.
    The prosecutor stated at the plea hearing,
    There is a sentencing provision that would say, if the victim was
    under the age of 12, that the defendant would not be eligible for a
    deferred judgment, which is set forth in the plea agreement, and the
    information in my file would show that M.C. was eight years old
    during the offensive conduct.
    ....
    As the Court had indicated, the defendant’s plea is to an
    amended trial information. The defendant faces a maximum prison
    sentence not to exceed five years and a fine of $7500. As I
    indicated, he’s not eligible for a deferred judgment. Other than that,
    it’s an open plea, and so the defendant could receive a sentence of
    incarceration or he could receive a suspended sentence of
    incarceration.
    The Court would also be free to select some intermediate
    criminal sanctions, such as placing the defendant at the Residential
    Correctional Facility if he was otherwise eligible. And then there
    are the collateral consequences that were discussed including the
    special sentence of supervised release, sex offender registry
    implications, and residency, employment and activity restrictions as
    well.
    THE COURT: Okay. I don’t know if you mentioned it at this
    time, but the ineligibility for a deferred [is] because of the age of the
    victim, correct?
    [PROSECUTOR]: Correct.
    THE COURT: Do you agree with that, [defense attorney] Mr.
    Morrison?
    MR. MORRISON: I do, Your Honor . . . .
    The court noted, “I know a deferred is not an option here.” A June 13,
    2014 court calendar entry indicates the court “accepts and enters Defendant’s
    plea of guilty.” The court ordered a presentence investigation (PSI) report be
    completed and requested a search of the deferred docket.
    On July 22, 2014, the PSI report was filed. It states, “Deferred Eligibility:
    To be determined.”     The report did not further indicate whether a deferred
    judgment was an available sentencing option. In addition, the report mistakenly
    5
    stated the offense for which Howell was convicted was a class “C” felony, when
    Howell was convicted a class “D” felony. See 
    Iowa Code § 709.8
     (2013)4 (“Any
    person who violates a provision of this section involving an act included in
    subsection 1 or 2 shall, upon conviction, be guilty of a class ‘C’ felony. Any
    person who violates a provision of this section involving subsection 3 or 4 shall,
    upon conviction, be guilty of a class ‘D’ felony.”).   The PSI recommended a
    prison sentence, without giving reasons for that recommendation.
    The sentencing hearing was held on July 25, 2014. The prosecutor and
    Howell’s attorney both commented on the misidentification of the type of felony
    noted in the PSI report. The prosecutor characterized it as a typographical error.
    Howell’s attorney stated,
    that [the erroneous felony class] may well have affected          the
    recommendation of this case because apparently the               PSI
    preparer—I don’t know if it was a typographical error or if he   just
    didn’t look into it deeply enough to know it was a class          “D”
    solicitation, rather than a class “C.”
    When asked if the State had a sentencing recommendation, the
    prosecutor read a letter submitted to the court from the child victim’s parents,
    which includes the statement, “She rarely sleeps in her own room because she
    was told if she said anything, he would come back and get her.” The family
    requested that a prison term be imposed.
    The defense presented expert testimony from two psychologists, Drs. Kirk
    Witherspoon and Luis Rosell, the defendant’s grandfather, and a counselor. The
    defense requested that the court grant a term of probation.
    4
    The PSI references section 709.8(2), a class “C” felony, which was renumbered in
    2013 Iowa Acts chapter 30, section 202 as section 709.8(1)(b).
    6
    The district court noted it had reviewed the PSI report (and
    “understand[ing] at all times it was a D felony”), the victim impact letter, the
    minutes of testimony, Dr. Rosell’s report and testimony, and Dr. Witherspoon’s
    testimony. The court entered judgment imposing a five-year prison term. No
    mention was made by the court or either party of the availability of a deferred
    judgment as a sentencing option.
    As noted above, memorandum of plea agreement filed here and before
    the sentencing court states the defendant was not eligible for a deferred
    judgment, citing Iowa Code section 907.3(1)(a)(13).        Section 907.3(1)(a)(13)
    removes the option of a deferred judgment if “the offense is a violation of section
    709.8 and the child is twelve years of age or under.”        However, Iowa Code
    section 901.5(14)—which became effective on July 1, 2013—allows the court to
    defer judgment and place the defendant on probation if the defendant was under
    eighteen at the time of the crime. See 2013 Iowa Acts ch. 42, § 14 (adding new
    subsection: “14. Notwithstanding any provision in section 907.3 or any other
    provision of law prescribing a mandatory minimum sentence for the offense, if the
    defendant . . . is guilty of a public offense other than a class ‘A’ felony, and was
    under the age of eighteen at the time the offense was committed, the court may
    suspend the sentence in whole or in part, including any mandatory minimum
    sentence, or with the consent of the defendant, defer judgment and sentence,
    and place the defendant on probation upon such conditions as the court may
    require”). Howell was sentenced on July 25, 2014, more than a year after the
    July 1, 2013 effective date of section 901.5(14).
    7
    The record in this case provides no indication the district court was aware
    of new subsection 901.5(14). Because the parties were in error that a deferred
    judgment was not an available option, and the memorandum of plea agreement
    clearly states that defendant is not eligible for deferred, the court did not exercise
    the discretion it possessed and we must vacate the sentence and remand for
    resentencing.5 See Ayers, 
    590 N.W.2d at 27
     (“When a sentencing court has
    discretion, it must exercise that discretion. Failure to exercise that discretion
    calls for a vacation of the sentence and a remand for resentencing.” (internal
    citation omitted)).
    SENTENCE VACATED; REMANDED FOR RESENTENCING.
    5
    We observe that the sentencing court stated, “For . . . the fact that this little girl’s
    parents will be able to go home and tell her that she is being protected to the extent
    possible, prison is the appropriate result of your actions.” Such a consideration has
    been determined to be improper. See State v. Laffey, 
    600 N.W.2d 57
    , 62 (Iowa 1999)
    (finding it impermissible to consider what a child will think of a sentence); see also State
    v. Pickering, No. 14-0701, 
    2014 WL 5862147
    , at *1 (Iowa Ct. App. Nov. 1, 2014) (finding
    court’s statements—“I’m of a mind to send her to prison right now, so that you can tell
    your daughter that’s precisely what happened. . . . I think you can tell your daughter
    then in two days this lady is going to prison.”—showed consideration of an impermissible
    factor).