State of Iowa v. Bernard Jamal Ware ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0794
Filed March 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BERNARD JAMAL WARE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Cerro Gordo County, Karen R.
Salic, District Associate Judge.
Bernard Jamal Ware appeals his criminal convictions and contempt
findings. WRIT ANNULLED; AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Carlyle Dalen, County Attorney, and R. Blake Norman, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, S.J.
Bernard Jamal Ware appeals the judgment imposed on his criminal
convictions and contempt findings.1 Because appeal cannot be taken from a
contempt punishment, Ware requests we consider the portion of this appeal
concerning the contempt findings a certiorari action. See Iowa Code § 665.11(2013).
Ware contends the district court abused its discretion by imposing
consecutive prison and jail terms rather than suspending judgment as the
prosecutor and presentence investigation report recommended. In imposing
judgment, the district court must determine how to best provide for the
defendant’s rehabilitation and the community’s protection. State v. Knight, 701
N.W.2d 83, 86 (Iowa 2005). In making this determination, it considers the nature
of the offense; attending circumstances; and defendant’s age, character,
propensities, and chances of reform. State v. Leckington, 713 N.W.2d 208, 216
(Iowa 2006). The court must state its reasoning on the record to demonstrate it
exercised discretion. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). The
court abuses its discretion only when it acts on grounds clearly untenable or to
an extent clearly unreasonable. Id.In imposing judgment, the court listed the factors it considered, including
Ware’s age, prior criminal history, family, and employment. It cited the “very
1
Ware pled guilty to willful injury, solicitation of an aggravated misdemeanor, and
domestic abuse assault, second offense. He was sentenced to consecutive prison
terms of five years, two years, and one year, respectively. Ware also stipulated to eight
alleged violations of a no-contact order issued in the domestic abuse assault case and
was found in contempt. He was ordered to serve 180 days in jail for each violation, with
the jail terms to run consecutively to each other and to the prison sentences.
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serious” nature of the offenses Ware had committed, two of which involved acts
of violence, and found the eight violations of the no-contact order “show a
demonstrated inability to follow the simplest of rules.” The court also noted the
solicitation charge involved “try[ing] to tamper with the witness in one of [the]
cases, which . . . not only demonstrates [Ware’s] lack of respect for [the] system,
but also for the victim of that case and for the process.” The court then referred
to Ware’s numerous convictions for interference with official acts, three prior
contempt findings, and domestic-abuse-assault and theft convictions before
exercising its discretion to impose the sentences and punishment for contempt.
Ware also contends there is insufficient evidence to support the finding
because although he stipulated to eight violations of the no-contact order, there
is no evidence to show he willfully violated it. See Opat v. Ludeking, 666 N.W.2d
597, 607 (Iowa 2003) (noting a contempt finding requires proof beyond a
reasonable doubt that an individual willfully violated a court order or decree).
Willfulness is established if there is proof of intentional and deliberate conduct
undertaken contrary to a known duty. Id. at 607-08.
Substantial evidence shows Ware willfully violated the no-contact order.
The order states it “shall remain in effect until modified or terminated by further
written order of the court, until the case is dismissed, or until sentencing.”
Although Ware claims the protected party told him the no-contact order was
“over,” he admitted he failed to investigate its status, evidencing a disregard for a
known duty. Accordingly, we affirm Ware’s sentence and the punishment for
contempt, and annul the writ challenging the contempt findings.
WRIT ANNULLED; AFFIRMED.