State of Iowa v. Abraham Ramirez ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0322
Filed March 17, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ABRAHAM RAMIREZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly (plea
and sentencing), Judge, and Cynthia Moisan (revocation) and Becky Goettsch
(revocation), District Associate Judges.
Abraham Ramirez appeals the revocation of his deferred judgment and
imposition of judgment and sentence for extortion. SENTENCE VACATED AND
REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
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TABOR, Judge.
Abraham Ramirez received a deferred judgment in July 2019 after pleading
guilty to extortion, a class “D” felony. See Iowa Code § 711.4(1)(a) (2019). The
district court placed him on two years of probation subject to conditions. Within six
months, Ramirez had repeatedly violated the terms of his probation. After his
second revocation hearing, the court entered judgment on the extortion
conviction. And the court imposed an indeterminate five-year prison sentence.
Ramirez now appeals, claiming five errors in the court’s sentencing
procedure: (1) failing to consider his mental-health evaluation; (2) assigning undue
weight to the Fifth Judicial District, Department of Correctional Services’ (DCS)
recommendation for incarceration; (3) considering an improper sentencing factor;
(4) imposing a prison term without granting defense counsel access to the
presentence investigation (PSI) report; and (5) providing inadequate reasons for
imposing the sentence. Because the court erred when it failed to provide counsel
access to the PSI before imposing judgment and sentence, we vacate the
sentencing decision and remand for resentencing. Finding this issue dispositive,
we need not reach the merits of the other claims.
I. Facts and Prior Proceedings
In late January 2019, Ramirez boarded a DART1 bus and ordered the driver
to get out. When the driver refused, Ramirez threatened to harm him, saying
“[s]omeone’s after me. Drive this thing or I’ll bust your head wide open.” Ramirez
then forced the driver to transport him to the police station. Refusing to let the
1 The Des Moines Area Regional Transit Authority operated the bus.
3
driver slow the bus down, Ramirez said, “[D]o what I say or you’ll be dead.” Police
arrested Ramirez outside of the station. Ramirez admitted that he had smoked
methamphetamine earlier in the day and that he had threatened the bus driver
because he wanted to chat with the police chief about “his life and the USA.”
The State charged Ramirez with four counts: kidnapping in the third degree,
extortion, harassment in the first degree, and false imprisonment. Ramirez
pleaded guilty to extortion in exchange for dismissal of the other counts. The plea
agreement also prohibited Ramirez from riding DART buses and required him to
pay restitution. The district court ordered the DCS to prepare a PSI.
At the July 2019 sentencing hearing, the court heard arguments from the
attorneys, as well as a statement from Ramirez. Both sides confirmed they had
reviewed the PSI before the hearing. Neither the State nor Ramirez made any
additions, corrections, or deletions to the report or objected to the use of the PSI
in sentencing. But during argument, defense attorney Paul Statler contested the
report’s “characterization” of Ramirez, asserting “there’s a lot that’s not in there.” In
defense counsel’s view, the root causes of Ramirez’s criminal behavior were
mental-health and substance-abuse issues. Based on that perspective, counsel
informed the court that Ramirez would engage in mental-health services and
substance-abuse treatment if the court granted a deferred judgment.
By contrast, the State recommended incarceration based on the severity of
the underlying crime. The State also highlighted that Ramirez accumulated
fourteen rule violations while in jail, claiming “[t]hat is not a person who is well
positioned to succeed on probation.” In its view, no evidence supported granting
a deferred judgment.
4
After considering the parties’ arguments, the PSI, and a mental-health
evaluation prepared by a clinical psychologist,2 the court granted a deferred
judgment and placed Ramirez on probation. The court ordered him to obtain
mental-health and substance-abuse evaluations, follow all recommended
treatment and aftercare, and seek employment. The court cautioned Ramirez that
he would go to prison if he disobeyed probation orders, violated the law, or used
illegal substances.
Less than three months later, in October, the DCS filed the first report of
violations. It alleged that Ramirez had (1) possessed alcohol during his stay at the
Salvation Army’s rehabilitation center,3 (2) failed to maintain contact with his
probation officer, (3) missed a scheduled meeting, and (4) failed to pay court
fees. Ramirez stipulated to those allegations. The DCS recommended the court
revoke his probation and impose the original sentence. But based on Ramirez’s
ongoing substance-abuse issues, the court continued his probation and placed
him at a residential correctional facility.
In late December, the DCS filed a second report of violations. In that report,
the probation officer recounted several incidents in which Ramirez disobeyed
2 Clinical psychologist Michael Cooper sent a three-page letter to attorney Statler
in June 2019, outlining a “mental status summary” based on four hours of
interviewing Ramirez in February 2019. Dr. Cooper reported that Ramirez’s
recollection of the crime “integrated delusional type beliefs.” But the psychologist
found it difficult to confirm a principal mental-health diagnosis because of
Ramirez’s “heavy substance abuse.” The letter also noted that Ramirez’s
performance on a structured-interview test suggested “the possible presence of
feigning” psychiatric illness. Yet, Dr. Cooper recommended Ramirez have access
to mental-health services. Dr. Cooper’s evaluation was filed under seal.
3 Ramirez was attending the substance-abuse treatment program at the Salvation
Army as part of his probation requirements.
5
facility rules and threatened the staff. Ramirez also tried to ride the DART bus, in
violation of the plea agreement and no-contact order. He again stipulated to
violating those terms of his probation.
At the January 2020 probation revocation and sentencing hearing, the
district court expressed concerns about Ramirez’s inability “to abide by basic
rules.” The court declined to give Ramirez a third chance on probation. In revoking
his deferred judgment, the court reasoned: “You may have the best of intentions,
but you just don’t do it. And you kind of want to do what you want to do, and that
concerns me.” The court then entered judgment on the extortion offense and
imposed an indeterminate five-year prison term. Ramirez appeals.4
II. Scope and Standard of Review
We review the sentence imposed for correction of legal error. See State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “We will not reverse the decision of
the district court absent an abuse of discretion or some defect in the sentencing
procedure.” Id.III. Access to PSI Report
We begin and end our analysis with Ramirez’s argument that the sentencing
decision should be reversed because the court imposed a prison sentence without
giving his counsel an opportunity to review the PSI. Ramirez asserts, “Had the
court provided a copy of the PSI to defense counsel, or continued the hearing,
counsel could have addressed the errors and omissions pertaining to the
document in advancing [his] case.”
4Despite the bar to appeals from guilty pleas in Iowa Code section 814.6, Ramirez
may appeal his sentence. See State v. Thompson, 951 N.W.2d 1, 5 (Iowa 2020).
6
In resistance, the State claims any error concerning the PSI should be
lodged as ineffective assistance because counsel never asked to see the
report. The State points out that Ramirez had a different attorney at the initial
sentencing hearing, who did review the PSI but chose not to object to its contents
or use. According to the State, “[t]he district court was not required to halt the
probation revocation hearing to provide [Ramirez’s] second counsel with a PSI that
[Ramirez] had already reviewed and approved.” We disagree. Even if Ramirez
and his former counsel did review the PSI at the initial sentencing hearing, the
issue is whether his new attorney had access to the report before the imposition
of judgment and sentence at the January 2020 hearing.
Iowa Code section 901.4 affords the defense two rights: (1) access to the
PSI at least three days before sentencing; and (2) an opportunity to file “a denial
or refutation of the allegations, or both, contained in the report.” These
requirements serve to satisfy “the basic requirements of due process and fair
notice.” State v. Dake, 545 N.W.2d 895, 897 (Iowa Ct. App. 1996). If defense
counsel and his client do not receive the requisite notice, the district court cannot
rely on the PSI when sentencing the defendant. Id.The record shows that the defense neither timely received the PSI nor had
an opportunity to deny the report’s allegations at the second revocation and
sentencing hearing. During a discussion of Ramirez’s mental-health issues,
defense counsel Darren Page informed the court: “I have not read the [PSI] on this
case because I don’t have access to it.” As a result, counsel did not know whether
the report discussed Ramirez’s mental health or what kind of treatment his client
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needed.5 Rather than addressing counsel’s lack of access to the PSI, the court
turned to probation officer Jill Daye’s testimony to fill in those gaps. The court
proceeded with this line of questioning:
THE COURT: As far as you know, there hasn’t been a
diagnosis of any kind?
MS. DAYE: Well, as far as the mental health evaluation, he
transferred to me from a traditional PO back in November, I want to
say, after he was already terminated. So the—I don’t know what his
diagnosis is, but he might know some of it. I just remember it being
like the ADHD type of things. It wasn’t—
THE COURT: I see something about special ed as well?
MS. DAYE: Yeah, it wasn’t schizo-affective, schizophrenia, or
anything like that, that I can recall.
The court’s reliance on information from the probation officer exacerbated
the problem because defense counsel could not object to her assertions without
knowing the substance of the PSI. Because due process and fair notice were not
satisfied before sentencing, the PSI was inadmissible during sentencing.
But a violation of section 901.4 does not automatically require reversal of
the sentencing decision. Id. Rather, Ramirez must make “an affirmative showing
the court relied on the improper evidence.” See id. Ramirez met that burden. The
court’s reasoning shows it did rely on the PSI:
Okay. So I have been able to review the file here and the
proceedings in this case. I’ve considered all of that. You know it’s
tough when—I don’t doubt that there’s probably some special needs
here of some kind. But we have to balance that with the safety of the
public and how realistic it is that we’re going to be able to address
any mental health when there’s, obviously, some behavior issues
and maybe antisocial personality-type things here that makes it,
apparently, impossible for Mr. Ramirez to abide by basic rules.
I see, you know, there were also problems in the jail.
5 The statements by attorney Page at the January 2020 hearing suggest he had
not seen Dr. Cooper’s evaluation either. Defense counsel told the court: “I know
that he has mental health issues. I do not know what they specifically are. And
these are from my observations and from talking directly to my client.”
8
Without access to the PSI, defense counsel could not evaluate or clarify the
court’s speculation that Ramirez had an antisocial personality disorder. In fact, the
PSI did not include any specific diagnosis.6
More significantly, the court’s reference to Ramirez’s problems in jail came
straight from the PSI. In recommending incarceration, the report’s author included
a long list of all the infractions Ramirez logged while in custody. Because those
acts were “introduced in violation of Iowa Code section 901.4,” the court should
not have considered them. See State v. Ashley, 462 N.W.2d 279, 283 (Iowa
1990). Based on the court’s reliance on impermissible information from the PSI in
sentencing Ramirez, we vacate his sentence and remand for resentencing before
a different district court judge.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Vaitheswaran, P.J., concurs; Ahlers, J., dissents.
6 The information on Ramirez’s “emotional/personal health” was scant; the PSI
said only that he had been previously prescribed Adderall and received therapy as
a child. The PSI also explained: “The defendant invalidated the Iowa Mental
Health Screen. Therefore, results could not be included in this report.”
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AHLERS, Judge (dissenting).
If anyone erred during this probation-revocation-turned-sentencing
hearing—and that’s a big “if”—it was not the district court. Therefore, I cannot join
in a ruling vacating the judgment and sentence imposed by the court.
Before getting to the details of what transpired at the hearing at issue, a
timeline of events leading up to the hearing may be useful. A presentence
investigation report (PSI) was filed in Abraham Ramirez’s case on July 3, 2019.
During his original sentencing hearing held on July 22, both Ramirez and his
defense counsel at the time acknowledged having received a copy of the PSI.
Other than one minor addition about Ramirez’s educational background, the
defense had no proposed “additions, corrections, or deletions” to the PSI and did
not object to its use. Sentencing was completed, and Ramirez was granted a
deferred judgment and placed on probation.
On October 8, probation revocation proceedings were initiated against
Ramirez. Ramirez was appointed counsel on October 11. Attorney Darren Page
filed an appearance as Ramirez’s counsel in the same court file that contained the
PSI on October 23. Attorney Page did not represent Ramirez at the original
sentencing. On November 4, the district court entered an order finding Ramirez
violated terms of probation. In spite of the violations, Ramirez was allowed to keep
his deferred judgment and remain on probation, with an added condition that he
reside in a residential correctional facility.
On December 30, a second probation revocation proceeding was initiated
against Ramirez. Ramirez was appointed counsel on January 3, 2020. Attorney
Page again filed an appearance as Ramirez’s counsel on January 8. A hearing on
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the application to revoke Ramirez’s probation was held on January 30. During that
hearing, an exchange took place that forms the basis for the majority’s ruling. That
exchange went as follows:
COURT: So I see that there was a mental health evaluation
done before, even, arraignment. I don’t see that there was an [Iowa
Code chapter] 812 [competency proceeding] of any kind. And then
the PSI doesn’t really talk about any sort of diagnosis.
Does he have a diagnosis? Has he been treated in the mental
health system before?
ATTORNEY PAGE: Judge, I have not—I know that he has
mental health issues. I do not know what they specifically are. And
these are from my observations and from talking directly to my client.
I have not read the Presentence Investigation Report on this
case because I don’t have access to it. So I don’t know the answer
to that question, Judge. I believe—maybe the mental health
evaluation was done for the purposes of seeing if there was a legal
defense. I’m not sure.
A discussion was then had with Ramirez’s probation officer about whether there
was a diagnosis. That discussion concluded with the district court asking if there
was anything else for the record, and defense counsel stated, “I don’t have
anything else.” The district court went on to consider information presented at the
hearing and contained in the court file, including the PSI and Ramirez’s stipulation
that he had violated the terms of probation. The district court revoked Ramirez’s
probation, revoked his deferred judgment, adjudicated him guilty of the offense,
and sentenced him to prison.
From the above-referenced exchange, the majority concludes the district
court erred in considering the PSI because doing so violated Iowa Code section
901.4 (2019).7 I respectfully disagree. If the PSI at issue were a new PSI or
7 In pertinent part, Iowa Code section 901.4 states “[t]he defendant’s attorney and
the attorney for the state shall have access to the presentence investigation report
at least three days prior to the date set for sentencing.” Section 901.4 also gives
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contained new information, it may be a different story, but it wasn’t. Ramirez and
his initial defense counsel obtained access to the one and only PSI in this case
over six months before the sentencing hearing at issue and were given the option
to deny or refute information in the report, which they declined. The fact Ramirez
had different counsel did not somehow undo the fact Ramirez and his previous
counsel had received the PSI, reviewed it, and approved it six months earlier.
Under these circumstances, I cannot conclude there was a violation of section
901.4, and Ramirez cannot claim he was surprised by the use of information he
had known about for over six months. To the extent Ramirez’s complaint is that
attorney Page had not accessed the PSI and was thus unprepared to address the
information in it, that is not an error on the part of the district court, it is a claimed
error by current defense counsel that should be addressed through a
postconviction-relief (PCR) proceeding.
I would further point out that attorney Page’s statement that he “didn’t have
access” to the PSI is ambiguous. I don’t know what that statement means,
because the record doesn’t tell us. It could mean any number of things, possibly
as benign as counsel simply did not have the PSI in front of him at the time and
had not taken the opportunity to read the PSI earlier when it was in front of him.
But even the interpretation of that comment that is most favorable to Ramirez
would be that it meant the court file was set up in such a way that attorney Page
a defendant or the defendant’s attorney the option of filing a “denial or refutation
of the allegations” contained in the PSI. These provisions “reflect the legislature’s
concern for orderly presentation of information to the court for sentencing purposes
and the fundamental notion of fairness.” State v. Ashley, 462 N.W.2d 279, 281
(Iowa 1990).
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could not access the PSI that had been in the file since July 2019. However,
attorney Page gave no explanation as to what he had done to try to access it and
made no request for it. Keep in mind, attorney Page had been counsel of record
with access to the court file both from October 11 to November 4 and again from
January 3 to the probation-revocation-turned-sentencing hearing on January 30.
This seems to be plenty of time for counsel to access the PSI or request a change
in the electronic filing system to grant him access if it was not already available.
There is nothing in the record suggesting he even tried. Furthermore, when asked
during the hearing if there was anything more defense counsel wanted to add to
the record, counsel declined. No request for access to the PSI. No request to
have a copy printed for counsel’s review. No request for a continuance to provide
additional time to access it. While a lack of effort to look at the PSI which had been
in the court file for over six months may constitute ineffective assistance of
counsel—an issue that can be sorted out in a PCR proceeding—I am hard-pressed
to conclude it constitutes lack of access to the PSI in a timely manner in violation
of section 901.4 after Ramirez and his initial counsel had access to the same PSI
for sentencing months earlier. I discern no error committed by the district court
under these circumstances.
Understandably and appropriately, having decided the case on the PSI
issue, the majority did not address the other issues raised by Ramirez. Since I
would not vacate the adjudication of guilt and sentence based on the PSI issue for
the reasons stated, it would be necessary to address the other issues raised. Full
discussion of the issues is unnecessary in light of the majority’s ruling, so I will
simply say I find Ramirez’s other challenges to be without merit. The record shows
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the district court considered proper factors, including Ramirez’s mental-health
evaluation, did not give undue weight to the recommendation for incarceration
contained in the PSI, gave adequate reasons for the sentence imposed, and did
not consider any improper factors.
For the foregoing reasons, I would affirm the district court, and I respectfully
dissent from the decision to vacate Ramirez’s judgment of guilt and the sentence
imposed.