State of Iowa v. Daniel Lee Kessler, Sr ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1388
Filed April 26, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DANIEL LEE KESSLER, SR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Pottawattamie County,
Richard H. Davidson, Judge.
Daniel Kessler appeals his sentence for second-degree theft. AFFIRMED.
Daniel M. Northfield, Urbandale, for appellant.
Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
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AHLERS, Judge.
Daniel Kessler pleaded guilty in writing to theft in the second degree. His
written guilty plea recited the plea agreement, which called for the State to
recommend a five-year prison sentence and dismiss charges against Kessler in
five separate pending criminal cases. The guilty plea specified it was an Iowa Rule
of Criminal Procedure 2.10 plea agreement, permitting Kessler to withdraw his plea
if the court did not accept the terms of the plea agreement. In his plea, Kessler
waived his right to be present at sentencing and right to allocution, and he
requested immediate sentencing. The district court accepted Kessler’s guilty plea
and sentenced Kessler in writing without a hearing. In conformity with the plea
agreement, the court sentenced Kessler to an indeterminate term of incarceration
not to exceed five years. Kessler appeals his sentence, contending the court did
not provide reasons for imposing the sentence. He also argues he did not waive
use of a presentence investigation report (PSI) at sentencing.
I. Jurisdiction
We first address whether we have jurisdiction to hear this appeal. A
defendant who pleads guilty to a charge other than a class “A” felony does not
have a statutory right to appeal unless the defendant can establish good cause.
Iowa Code § 814.6(1)(a)(3) (2022). A defendant can establish good cause by
challenging the sentence and not the plea itself. State v. Damme, 944 N.W.2d 98,
105 (Iowa 2020). However, good cause to challenge a sentence is generally
limited to a sentence that is neither mandatory nor agreed to as part of a plea
agreement. Id.; see also State v. Estabrook, No. 22-1118, 2023 WL 2671954,
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at *1 (Iowa Ct. App. Mar. 29, 2023) (dismissing appeal challenging sentence when
the defendant received the agreed-upon sentence).
As Kessler received the sentence agreed to in the plea agreement, it
appears at first blush that he has failed to establish good cause and we must
dismiss his appeal, as the State contends we should do. But not so fast. In State
v. Wilbourn, our supreme court found no impediment to a finding of good cause
even though the defendant received an agreed-upon sentence when the
defendant alleged an erroneous imposition of a fine that was not covered by the
terms of the plea agreement. 974 N.W.2d 58, 66 (Iowa 2022). And, the supreme
court has found good cause when the defendant received an agreed-upon
sentence but there was a claimed defect in the sentencing procedure by an alleged
denial of the defendant’s right to allocution. State v. Davis, 969 N.W.2d 783, 785
(Iowa 2022) (“Davis’s challenge to the sentencing hearing and the subsequent
sentence establishes good cause to appeal as a matter of right.”).
Putting the concepts embodied in Wilbourn and Davis together, we
conclude that a defendant establishes good cause even though the defendant
received the agreed-upon sentence when there is a claimed defect in the
sentencing procedure. As Kessler alleges, he did not waive his statutory right to
a PSI prior to sentencing, he has alleged a defect in the sentencing procedure that
establishes good cause despite the fact that he received the agreed-upon
sentence. And, by getting his foot in the door by alleging a defect in the sentencing
procedure, Kessler also gets to challenge the sentence itself, as we do not parse
types of sentencing challenges once good cause is established. See Wilbourn,
974 N.W.2d at 66 (“We decline to parse or bifurcate the specific sentencing errors
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alleged when determining good cause. An appellate court either has jurisdiction
over a criminal appeal or it does not. Once a defendant crosses the good-cause
threshold as to one ground for appeal, the court has jurisdiction over the appeal.”).
So, we find we have jurisdiction to hear Kessler’s appeal, and we proceed to the
merits.
II. Standard of Review
We review sentences for correction of errors at law. Id. at 65. “We will not
reverse a sentence unless there is ‘an abuse of discretion or some defect in the
sentencing procedure.’” Damme, 944 N.W.2d at 103 (quoting State v. Formaro,
638 N.W.2d 720, 724 (Iowa 2002)).
III. Analysis
Kessler raises two sentencing challenges. We address them separately.
A. Waiver of Use of PSI
Kessler asserts he did not waive his right to use of a PSI at the time of
sentencing, so he is entitled to resentencing. As Kessler pleaded guilty to a
class “D” felony, the court is required to order a PSI, and the ordering of the PSI
cannot be waived. See Iowa Code § 901.2(2)(b). However, use of the PSI can be
waived. State v. Thompson, 494 N.W.2d 239, 241 (Iowa 1992) (“We believe there
is a distinction between waiving the [PSI], prohibited under section 901.2, and
waiving the trial court’s use of the report.”).
Kessler pleaded guilty in writing. In his written guilty plea, Kessler
acknowledged, “I understand that I have the right to the preparation of a [PSI] and
a delay of at least 15 days between the date this plea is entered and the date of
sentencing.” Kessler then waived his right to delay in sentencing, waived his right
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to be present at sentencing, and requested the court to sentence him immediately.
We find this to be an effective waiver of Kessler’s right to use of a PSI at
sentencing. Kessler expressed his knowledge that he was entitled to the
preparation of a PSI. He also expressed his knowledge of his right to delay
sentencing, which is the period of time during which the PSI could be prepared.
By then waiving time between plea and sentencing, waiving the right to be present
at sentencing, and asking for immediate sentencing, Kessler had to know he was
also giving up his acknowledged right to consideration of a PSI, as there would be
no time to prepare the PSI and make it available to the sentencing judge before
the sentence was pronounced. As such, Kessler waived his right to use of a PSI,
so we reject his challenge on this ground.
B. Reasons for Sentence
Kessler also challenges his sentence based on the alleged failure of the
district court to state reasons for the sentence. While we agree that the court did
not give reasons for the sentence imposed, we reject this challenge because
Kessler agreed to the sentence.1
1 We also reject Kessler’s claim that, in his written guilty plea, he did not agree to
the recommendation made by the State and that he only agreed that the State
would make the designated recommendation. Kessler’s plea spells out the State’s
recommendation. The plea also states Kessler’s understanding that the plea
agreement “is a RULE 2.10 plea agreement, which means that if the Court does
not accept the plea agreement, I may withdraw my plea of guilty.” See Iowa R.
Crim. P. 2.10 (establishing a type of guilty plea whereby a defendant will receive
an agreed-upon sentence or be allowed to withdraw the plea if the court is unwilling
to impose the agreed-upon sentence). Kessler’s claim on appeal that he did not
agree to the State’s recommended sentence contradicts his statement in his guilty
plea that it was being entered under a rule 2.10 plea, as a rule 2.10 plea agreement
requires a joint recommendation. Further, as Kessler waived his right to be present
at sentencing, there would be no opportunity for Kessler to present a competing
sentencing recommendation to that made by the State. Based on these
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A district court’s failure to adequately cite reasons for a sentence is
ordinarily reversible error. State v. Thacker, 862 N.W.2d 402, 409 (Iowa 2015).
However, there is no requirement to state reasons for a sentence when the
sentence merely incorporates an agreed-upon sentence. State v. Snyder, 336
N.W.2d 728, 729 (Iowa 1983). In such an instance, the sentence is “not the
product of the exercise of trial court discretion but of the process of giving effect to
the parties’ agreement,” and “the purpose of a statement of reasons for imposition
of the sentence would serve no practical purpose.” Id. As a result, any failure by
the court to give reasons for the sentence is harmless. Id. As the district court
imposed the agreed-upon sentence, the failure to give reasons for the sentence
does not warrant vacation of the sentence. That said, we repeat the advice of our
supreme court “that the better practice is for the court to state reasons in every
case.” Id.AFFIRMED.
considerations, we find Kessler agreed to join in the State’s recommendation as
stated in his written guilty plea. No other interpretation of the written plea makes
sense.