Odell Everett v. Iowa District Court for Black Hawk County ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1012
Filed August 18, 2021
ODELL EVERETT,
Plaintiff-Appellant,
vs.
IOWA DISTRICT COURT FOR BLACK HAWK COUNTY,
Defendant-Appellee.
________________________________________________________________
Certiorari to the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Odell Everett appeals the district court’s order denying his motion to vacate
his sentence. REVERSED AND REMANDED; WRIT ANNULLED.
Tiffany Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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VAITHESWARAN, Judge.
Odell Everett was adjudged guilty of first-degree robbery following a jury
trial in Black Hawk County. At the sentencing hearing, the prosecutor advised the
district court, “obviously this is a mandatory sentence; we’d ask the Court to
impose that sentence.” The prosecutor referred to “the 70 percent mandatory
minimum” and noted there was also a “sentencing enhancement provision” under
Iowa Code section 902.7 (2003), which provided for “the mandatory five as well.”
The district court sentenced Everett to a prison term not exceeding twenty-five
years but only ordered him to serve a mandatory minimum term of five years.
Neither the court’s oral pronouncement of sentence nor the written sentencing
order made reference to the statutory seventy-percent mandatory minimum
sentence set forth in Iowa Code section 902.12.1
Fifteen years later, Everett filed a motion to vacate his sentence. He
claimed the department of corrections illegally “implemented a mandatory
minimum of 70% . . . that the Court did not impose.” At a hearing on the motion,
the district court acknowledged Iowa Code section 902.12 required the imposition
of a seventy-percent mandatory minimum term and agreed the sentencing court
1 The version of section 902.12 in effect at the time stated the following with respect
to first-degree robbery:
A person serving a sentence for conviction of the following
felonies, including a person serving a sentence for conviction of the
following felonies prior to July 1, 2003, shall be denied parole or work
release unless the person has served at least seven-tenths of the
maximum term of the person’s sentence:
....
5. Robbery in the first or second degree in violation of section
711.2 or 711.3.
Iowa Code § 902.12 (2003).
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“failed to include reference to 902.12 in the sentencing order.” Nonetheless, the
court denied Everett’s motion, reasoning that the omission was “a scrivener’s
error.”
On appeal, Everett contends his “sentence is illegal and void” because he
“was not sentenced to a mandatory minimum [sentence] under Iowa Code section
902.12, yet he is being held as if he were.” In his view, “The remedy for this illegal
sentence is for [him] to be brought back to Black Hawk County to be resentenced,
imposing the mandatory minimum.” The State “agrees that the district court failed
to impose the minimum sentence required under section 902.12 and that there
must be a re-sentencing hearing.” The State disagrees with Everett’s request to
“be present at the hearing.” In its view, “the sentence to be imposed is a mandatory
one such that the district court would exercise no discretion and the presence of
Everett would not aid the district court’s sentencing decision in any way.”
Iowa Rule of Criminal Procedure 2.23(3)(d) requires a court to allow “the
defendant personally” to “make a statement in mitigation of punishment.” “[A]
defendant’s presence is not required where a district court is correcting an existing
sentence, so long as the disposition would not be aided by the defendant’s
presence and the modification does not make the sentence more onerous.” State
v. Cooley, 691 N.W.2d 737, 741 (Iowa Ct. App. 2004) (emphasis added).
The mandatory minimum sentence the department required Everett to
serve was significantly more onerous than the sentence imposed by the trial court.
For that reason, we conclude Everett is entitled to be present at the resentencing
hearing. See State v. Fowler-Ortiz, No. 06-1934, 2007 WL 2376672, at *1 (Iowa
Ct. App. Aug. 22, 2007) (“The modification . . . makes the sentence more onerous.
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We conclude [the defendant] should have been before the court when it considered
imposition of the lifetime parole.”); cf. State v. Jackson, No. 19-1031, 2020 WL
1049528, at *3 (Iowa Ct. App. Mar. 4, 2020) (concluding the onerousness
requirement of Cooley was not violated where the defendant agreed to the added
sentencing condition); State v. Yates, No. 12-2273, 2014 WL 2600212, at *2 (Iowa
Ct. App. June 11, 2014) (concluding the removal of a sentencing enhancement did
not require the defendant’s presence and the defendant’s argument that he “could
have enlightened the court on whether a seventy-percent minimum sentence
should have applied and whether he was subject to DNA testing” was not grounds
for allowing his presence because both components of his original sentence were
mandatory). We reverse the denial of the motion to vacate and remand for
resentencing in Everett’s presence.
REVERSED AND REMANDED; WRIT ANNULLED.