State of Iowa v. Shawn William Durrell

IN THE COURT OF APPEALS OF IOWA
No. 20-0967
Filed January 12, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHAWN WILLIAM DURRELL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Tabitha Turner, District
Associate Judge.
Defendant appeals his conviction following a guilty plea to sexual
misconduct with an offender. AFFIRMED.
Alfredo Parrish of Parrish Kruidenier Dunn Gentry Brown Bergmann &
Messemer L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Doyle and Carr, S.J.J.*
*Senior judges assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
CARR, Senior Judge.
Shawn Durrell appeals his conviction following a guilty plea to sexual
misconduct with an offender. Durrell has shown good cause for a direct appeal.
He did not have a conditional guilty plea, and the court was not bound by the
sentencing recommendation in the written guilty plea. We find the court did not
abuse its discretion in sentencing Durrell. We affirm his conviction.
I. Background Facts & Proceedings
Durrell was an employee of the Iowa Department of Corrections (DOC) at
the women’s correctional facility at Mitchellville. He was charged with sexual
misconduct with an offender, M.B., in violation of Iowa Code section 709.16(1)
(2019), an aggravated misdemeanor. The State alleged Durrell engaged in a sex
act with a woman who was in the custody of the DOC.
On January 30, 2020, Durrell signed a written plea agreement in which he
agreed to plead guilty to the charge. The plea agreement stated,
Unless I commit a new crime, or violate a court order the plea
agreement is deferred judgment, 2 years probation, $300.00
probation fee, $625.00 civil penalty, court costs, sex offender
registry.
The court is not bound by any plea agreement and may give
me the maximum sentence allowed by law, including any enhanced
sentence.
Durrell checked a box to show he gave up his right to have a record made of the
plea proceedings and sentencing.1 The court accepted Durrell’s guilty plea.
Durrell did not file a motion in arrest of judgment.
1 Therefore, there is no transcript of the proceedings.
3
Durrell was sentenced to two years in prison, the sentence was suspended,
and he was placed on probation for two years. Durrell was ordered to pay a
$625.00 civil penalty and a $625.00 surcharge. Durrell was also given a special
sentence under section 903B.2 and required to register as a sex offender for a
period of ten years. Durrell appealed.
II. Good Cause to Appeal
Section 814.6(1)(a)(3) provides a defendant does not have a right to a direct
appeal “where the defendant has pled guilty.” There is an exception “where the
defendant establishes good cause.” Iowa Code § 814.6(1)(a)(3). “[G]ood cause
exists to appeal from a conviction following a guilty plea when the defendant
challenges his or her sentence rather than the guilty plea.” State v. Damme, 944
N.W.2d 98, 105 (Iowa 2020). There is also good cause to appeal when a
defendant claims the prosecutor breached the plea agreement at the sentencing
hearing. State v. Boldon, 954 N.W.2d 62, 69 (Iowa 2021). We determine this case
is similar to Boldon because Durrell claims there was a breach of the terms of his
plea agreement in regard to sentencing. See id. Additionally, the State concedes
Durrell presented good cause for this direct appeal. We proceed to the merits of
Durrell’s appeal.
III. Nature of the Plea Agreement
Some plea agreements are conditioned upon approval by the court. Iowa
Rule of Criminal Procedure 2.10(2) provides, “[I]f the [plea] agreement is
conditioned upon concurrence of the court in the charging or sentencing
concession made by the prosecuting attorney, the court may accept or reject the
agreement, or may defer its decision as to acceptance or rejection until receipt of
4
a presentence report.” If the plea agreement is accepted by the court, “the court
shall inform the defendant that it will embody in the judgment and sentence the
disposition provided for in the plea agreement or another disposition more
favorable to the defendant than that provided for in the plea agreement.” Iowa R.
Crim. P. 2.10(3).
On the other hand, if the court does not accept the plea agreement,
the court shall inform the parties of this fact, afford the defendant the
opportunity to then withdraw defendant’s plea, and advise the
defendant that if persistence in a guilty plea continues, the
disposition of the case may be less favorable to the defendant than
that contemplated by the plea agreement.
Iowa R. Crim. P. 2.10(4). The requirements of rule 2.10(4) “apply only when the
plea agreement has been conditioned on the court’s concurrence in the agreement
between the parties.” State v. Hanna, No. 17-2090, 2019 WL 320184, at *2 (Iowa
Ct. App. Jan. 23, 2019) (citation omitted).
Based on the language in the plea agreement—“Unless I commit a new
crime, or violate a court order the plea agreement is deferred judgment, 2 years
probation, $300.00 probation fee, $625.00 civil penalty, court costs, sex offender
registry”—Durrell claims he had a conditional guilty plea and once the court
accepted his plea, the court should have sentenced him according to the terms of
the agreement. He asserts the court should have stated it was not going to be
bound by the sentence in the written plea agreement and he should have been
given the opportunity to withdraw his guilty plea.2 See Iowa R. Crim. P. 2.10(4).
2The State asserts that Durrell did not preserve error on this claim because he did
not raise it at the sentencing hearing. Unlike cases where a defendant claims the
5
Immediately following the excerpt from the plea agreement relied upon by
Durrell, the written plea agreement stated, “The court is not bound by any plea
agreement and may give me the maximum sentence allowed by law, including any
enhanced sentence.” This statement shows the plea agreement was not
conditioned upon the court’s acceptance. See State v. McCanna, No. 17-1210,
2018 WL 3654850, at *2 (Iowa Ct. App. Aug. 1, 2018) (noting a plea agreement
was not conditional because “[i]t unequivocally stated the court was free to impose
the maximum sentence allowed by law”). When a defendant does not have a
conditional plea agreement, rule 2.10(4) does not apply. See Hanna, 2019 WL
320184, at *3; cf. State v. Holton, No. 19-0324, 2020 WL 2988001, at *2 (Iowa Ct.
App. June 3, 2020) (finding “the plea agreement included an agreed sentence to
be imposed, requiring the court’s concurrence”). We conclude the court was not
required to allow Durrell to withdraw his guilty plea.
IV. Sentencing
Durrell claims the district court abused its discretion by giving him a two-
year suspended sentence rather than a deferred judgment. He states the factors
relied upon by the court do not support his sentence.
prosecutor breached the plea agreement, Durrell claims the court should have
sentenced him in accordance with the plea agreement. There was no basis to
object until the court sentenced Durrell. We conclude there is no requirement to
object in order to appeal the sentence. See State v. Gordon, 921 N.W.2d 19, 23
(Iowa 2018) (noting ordinary principles of error preservation do not apply in
sentencing); State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014) (finding the
rules of error preservation did not apply “where the defendant does not know the
deficiency in the plea proceeding until after sentencing”).
6
“Appellate review of the district court’s sentencing decision is for an abuse
of discretion.” State v. Evans, 672 N.W.2d 328, 331–32 (Iowa 2003). A court’s
sentencing decisions “are cloaked with a strong presumption in their favor.” State
v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). “We afford sentencing judges a
significant amount of latitude because of the ‘discretionary nature of judging and
the source of the respect afforded by the appellate process.’” Boldon, 954 N.W.2d
at 73 (quoting State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002)). “A defendant
therefore has the burden to provide a record showing that the court abused its
discretion.” State v. Crooks, 911 N.W.2d 153, 171 (Iowa 2018) (citation omitted).
The preliminary criminal complaint stated, “During a period of days ranging
from 7/4/19 through 8/9/19, while employed by the Iowa Correctional Institution for
Women, Shawn Durrell engaged in sexual acts with Incarcerated Individual [M.B.]
in exchange for tobacco products.” The trial information alleged Durrell “engage[d]
in a sex act with M.B., who is committed to the custody of the Iowa Department of
Corrections.”3
To establish a factual basis for the plea, Durrell admitted, “On July 4, 2019,
in Polk County, Iowa, as an employee of the [DOC] I engaged in a sexual act with
an inmate of the [DOC] facility I worked at.” Durrell waived the reporting of the
sentencing hearing. He also waived the right “to the preparation and use of a pre-
sentencing report.” Thus, there is limited information in the record about Durrell’s
circumstances.
3Durrell references the preliminary complaint and trial information several times in
his appellate brief.
7
The criminal complaint and Durrell’s admission in the written guilty plea
show that he committed an abuse of his authority and a breach of public trust.
Durrell was in a position of authority over M.B. and engaged in sexual acts with
her in exchange for tobacco products. See State v. Bolsinger, 709 N.W.2d 560,
566 (Iowa 2006) (finding there was sufficient evidence to support a conviction
under section 709.16(2), noting the defendant “was in a position of power over the
victims”). As an employee of the DOC, Durrell was in a position of power over
M.B., who was an inmate.
In the sentencing order, the court checked on boxes to show it relied on the
following factors in sentencing Durrell: (1) “The nature and circumstances of the
crime”; (2) “Protection of the public from further offenses”; (3) “Defendant’s
propensity for further criminal acts”; (4) “Maximum opportunity for rehabilitation”;
(5) “Defendant’s age and character”; and (6) “The plea agreement.”
The nature of the offense cannot be the sole factor considered by the court.
State v. Hopkins, 860 N.W.2d 550, 555 (Iowa 2015). The seriousness and gravity
of the offense, however, are important factors for the sentencing court to consider.
Id. The sentencing order shows the court relied upon several factors, not just the
seriousness and gravity of the offense. Durrell does not claim the court relied on
impermissible factors. See State v. Chapman, 944 N.W.2d 864, 876 (Iowa 2020)
(stating a case must be remanded for a new sentencing hearing where the court
considers “impermissible factors in making a sentencing decision”). Nor is the
sentence outside the statutory limits. See State v. Wilson, 941 N.W.2d 579, 585
(Iowa 2020) (“We apply an abuse of discretion standard when the sentence
challenged was within the statutory limits.” (citation omitted)).
8
“When the sentencing decision falls within the statutory limits, it ‘is cloaked
with a strong presumption in its favor.’” State v. Fetner, 959 N.W.2d 129, 134
(Iowa 2021) (citation omitted). Durrell has not shown the court exercised its
discretion “on grounds or for reasons that were clearly untenable or unreasonable.”
Damme, 944 N.W.2d at 106 (citation omitted). We conclude Durrell has not shown
the court abused its discretion. See State v. Harris, 528 N.W.2d 133, 135 (Iowa
Ct. App. 1994) (noting a defendant has the burden to show the court abused its
discretion); see also State v. Hines, No. 11-0920, 2012 WL 150579, at *1 (Iowa Ct.
App. Jan. 19, 2012) (finding the court did not abuse its discretion in sentencing
defendant to a term of imprisonment because he committed sexual misconduct
with an offender while he was in a position of authority).
We affirm the decision of the court.
AFFIRMED.