State of Iowa v. Edwin Allen III ( 2024 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0785
Filed January 24, 2024
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EDWIN ALLEN III,
Defendant-Appellant.
________________________________________________________________
Discretionary review from the Iowa District Court for Polk County, Brendan
Greiner, District Associate Judge.
Edwin Allen III appeals the sentence imposed following his plea of guilty.
REVERSED AND REMANDED WITH DIRECTIONS.
Nicholas A. Sarcone of Babich Sarcone PLLC, Des Moines, for appellant.
Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., Schumacher, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2024).
2
BOWER, Chief Judge.
Edwin Allen III appeals the sentence imposed following his plea of guilty,
challenging the use of information by the district court without providing him notice.
On discretionary review, because the court considered matters outside the record
without notice to Allen prior to sentencing, we reverse and remand for
resentencing.
I. Background Facts and Proceedings
Allen was charged with harassment in the second degree, threatening to
commit bodily injury, a serious misdemeanor, in violation of Iowa Code section
708.7(3) (2022). The matter came before a district associate judge for a pretrial
hearing after which Allen pleaded guilty to disorderly conduct, a simple
misdemeanor, in violation of section 723.4(1)(b). The parties’ plea agreement
called for a $105 minimum fine, extension of a no-contact order protecting two
people, and Allen’s participation in a substance-abuse evaluation and
recommended treatment.1
During a combined sentencing hearing three months later while
represented by different counsel,2 the court sentenced Allen to a thirty-day
suspended sentence, one year of probation, and a $105 fine. In its sentencing
order, the court indicated one of the reasons for the sentence was “statements
made by defendant in open court.” Defense counsel objected, but the court
1 Sentencing was to be scheduled after the trial of another charge against Allen.
2 Allen stood convicted of two counts of disorderly conduct—the instant case
(SRCR363147) and the consolidated case (AGCR366661) both originally charged
Allen with indictable offenses that resulted in pleas of guilty.
3
proceeded without addressing the objection. Allen waived reporting of the plea
and sentencing hearings, so there are no transcripts to review.
On May 11, 2023, Allen filed an application for discretionary review arguing
the sentencing court violated his due process rights and abused its discretion by
considering and relying on facts outside the record without providing notice it
intended to do so.3
That same date, Allen filed an Iowa Rule of Appellate Procedure Rule 6.806
statement of the proceedings. The district court held a hearing, and on June 9, the
court filed a supplemental record, stating in part:
(4) On Thursday, February 9, 2023, the parties appeared for
a pretrial conference SRCR363147 [this case]. This is a typical court
service day. The defendant was represented by attorney Steven
DeVolder. The State was represented by Assistant Polk County
Attorney Lucas Sterbick.
(5) Following an in-person pretrial conference to resolve
disputed matters in SRCR363147, the parties came back into the
courtroom indicating they worked out a plea agreement.
(6) Mr. Sterbick asked to be excused to the ante-courtroom to
prepare and submit a proposed order. [Allen] and his attorney waited
at counsel table for the order to be entered and for the court to accept
3 Allen initially appealed to the district court because he was found guilty of a simple
misdemeanor. However, Allen determined an application for discretionary review
was appropriate because he was initially charged with an indictable offense.
The State argues that discretionary review is the wrong avenue for
challenging a district associate court’s exercise of discretion in sentencing Allen
for a simple misdemeanor. It contends the plea was accepted by a district
associate judge exercising the jurisdiction of a magistrate, see Iowa Code
§ 602.6306(1), thus the State argues the appeal is to the district court. See Tyrrell
v. Iowa Dist. Ct., 413 N.W.2d 674, 675 (Iowa 1987); Iowa Code § 602.6306(4).
However, we believe discretionary review is the appropriate avenue for
appeal in this matter because Allen was initially charged with an indictable offense.
See Tyrrell, 413 N.W.2d at 675–76 (“When a defendant, such as Tyrrell, has been
charged initially with an indictable offense, and is thereby given access to all of the
protections of district court practices and procedures, he has received the benefits
of those practices and procedures at one point, and we believe that is all to which
he is entitled. Any further review by an appellate court is purely discretionary.”).
We find no reason to disturb the supreme court’s grant of discretionary review.
4
the plea to an amended charge. The court remained seated at the
bench to continue with court service. There were also others present
in the gallery and at the judicial assistant’s desk. [Allen] engaged his
attorney in conversation unrelated to the case. [Allen] was speaking
in a normal, conversational tone that was easily heard by multiple
people in the courtroom. The court’s microphones were not on. The
court heard the defendant make comments about Hispanics and
African Americans which were offensive.
....
(9) The parties appeared for sentencing in AGCR366661 and
in SRCR363147 on May 1, 2023. Attorney Nicholas Sarcone now
represented [Allen].
....
(11) The factors the court considered in SRCR363147 were:
the facts and circumstances of the case; the fact that this was
directed towards one of his tenants; the fact that the recipients of the
statements were children; and the offensive statements [Allen] made
about ethnic minorities in the courtroom—off the record—at his plea
in SRCR363147. The court believed an anger management course
with probation was more appropriate than the fine agreed to in the
plea agreement. The court imposed a suspended [thirty]-day jail
sentence.
The supreme court granted discretionary review and transferred the case
to this court.
II. Standard of Review
We review sentences for correction of errors at law. State v. Gordon, 921
N.W.2d 19, 24 (Iowa 2018). We reverse only if the sentencing court abused its
discretion or there was some defect in the sentencing procedure. Id.The law is clear regarding consideration of impermissible sentencing
factors. We will not vacate a sentence on appeal “unless the
defendant demonstrates an abuse of trial court discretion or a defect
in the sentencing procedure such as the trial court’s consideration of
impermissible factors. However, “[i]f a court in determining a
sentence uses any improper consideration, resentencing of the
defendant is required,” even if it was “merely a ‘secondary
consideration.’”
5
State v. Lovell, 857 N.W. 2d 241, 242–43 (Iowa 2014) (alteration in original)
(internal citations omitted). We review constitutional questions de novo. State v.
Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).
III. Analysis
Allen claims the district court violated his due process rights and abused its
discretion by relying on its understanding of his unreported statements in later
sentencing him without notifying the defense of its intent to do so. The State
argues the court did not consider an improper factor because “[t]he defendant’s
character in general is a relevant consideration for courts at sentencing.”
Iowa Code section 901.5 informs the court it is to “receiv[e] and examin[e]
all pertinent information, including the presentence investigation report and victim
impact statements” in determining a sentence that “will provide maximum
opportunity for the rehabilitation of the defendant, and for the protection of the
community from further offenses by the defendant and others.” We agree our
supreme court has held consideration of a defendant’s character is a permissible
factor. State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002) (“[E]qually important
to consider the host of factors that weigh in on the often arduous task of sentencing
a criminal offender, including the nature of the offense, the attending
circumstances, the age, character and propensity of the offender, and the chances
of reform.”). Our supreme court
has said, “[r]oughly stated, character is what a man actually is, while
reputation is what his neighbors say he is.” State v. Poston, 199
Iowa 1073, 1074, 203 N.W. 257, 258 (1925). “[Q]uarrelsome, violent,
aggressive or turbulent character” is character evidence. Klaes v.
Scholl, 375 N.W.2d 671, 675 (Iowa 1985) (quoting Jacoby, 260
N.W.2d at 838); see also State v. Webster, 865 N.W.2d 223, 243
(Iowa 2015) (determining that a party’s act of striking his ex-wife was
6
relevant to proving a violent character). On the other end of the
spectrum, evidence used to prove a person’s traits for “honesty,
integrity, and good citizenship” or “peacefulness and nonviolence” is
considered character evidence. State v. Hobbs, 172 N.W.2d 268,
271 (Iowa 1969).
State v. Buelow, 951 N.W.2d 879, 887–88 (Iowa 2020) (alterations in original); see
also Character evidence, Black’s Law Dictionary (11th ed. 2019) (defining
character evidence as “[e]vidence regarding someone’s general personality traits
or propensities, of a praiseworthy or blameworthy nature; evidence of a person’s
moral standing in a community”). But we are not convinced statements a judge
remembers a defendant said while it was conducting other pretrial proceedings
can fairly be described as character evidence.
The State contends, “If the defendant has an outburst in court or displays
an attitude of disrespect toward the judicial system during the proceedings, the
district court does not need to inform the defendant prior to sentencing that it
intends to rely on its observations of the defendant’s behavior.” To the extent such
an outburst occurs during a proceeding involving the defendant, which is reported,
we might agree. But here, what the district court described in the supplemental
record was not an “outburst” nor was it related to a proceeding involving the
defendant and reported, producing a record available for review. Nor is it
information contained in a presentence investigation (PSI) report, which the
defendant has an opportunity to review and contest. Cf. Gordon, 921 N.W.2d at
23 (noting the defendant and his attorney had access to the PSI report prior to
sentencing, reviewed the report, and had no objection to materials within). Rather,
it is the court’s memory of statements made by the defendant to a different
7
attorney, which the court found “were offensive” and implied the comments were
also racist.
The minutes of testimony include evidence that this crime was racially
motivated. A racially offensive remark made by a defendant in the presence of the
judge during a recess of the defendant’s guilty plea to a racially motivated offense
might reflect poorly on the character and propensity of the offender, and the
chances of reform. See State v. Bragg, 388 N.W.2d 187, 191 (Iowa Ct. App. 1986)
(observing the sentencing court expressed, based upon the defendant’s conduct
during a trial, the opinion the defendant was “untruthful, was unrepentant, and was
a bully whose rehabilitation and reformation were likely to require more than
probationary supervision”). But in this case, the district court did not make a record
of Allen’s allegedly offensive remark and did not give Allen notice it intended to rely
upon the court’s recollection of the statement at sentencing.
We agree with Allen that absent notice given by the court to the defense
and the State that it intended to rely on matters outside the record, consideration
of the information was improper. See State v. Ashley, 462 N.W.2d 279, 282 (Iowa
1990) (“The basic requirements of due process and fair notice have been codified
in Iowa Code sections 901.3 and 901.4, and we believe that failure to provide the
statutory notice renders such evidence inadmissible on the issue of sentencing.”);
Rinehart v. State, 234 N.W.2d 649, 654 (Iowa 1975) (finding a defendant is
“entitled to be sentenced based on information subject to challenge”). We
therefore vacate the sentence imposed and remand for resentencing. See Lovell,
857 N.W.2d 243. Sentencing shall be held before a different judge.
REVERSED AND REMANDED WITH DIRECTIONS.