Amended June 24, 2015 State of Iowa v. Tina Lynn Thacker

• Court: Supreme Court of Iowa
• Decided: April 17, 2015
• Docket: 14–0374
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 14–0374

Filed April 17, 2015

Amended June 24, 2015

STATE OF IOWA,

Appellee,

vs.

TINA LYNN THACKER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, James D.

Birkenholz, District Associate Judge.

The defendant seeks further review of a court of appeals decision

affirming her conviction and sentence of second-degree harassment

following a guilty plea. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT SENTENCE VACATED AND CASE REMANDED

WITH INSTRUCTIONS.

Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, John P. Sarcone, County Attorney, and Kevin J. Bell,

Assistant County Attorney, for appellee. 2

APPEL, Justice.

In this case, we must decide two questions related to the

sentencing of the defendant. The first question is whether the district

court complied with Iowa Rule of Criminal Procedure 2.23(3)(d) in

sentencing the defendant after she pled guilty pursuant to a plea bargain

when the sentencing order does not contain the provisions of the plea

bargain. The second question is whether the district court improperly

accepted the guilty plea without first determining that the defendant’s

plea was made voluntarily and intelligently and had a factual basis as

required by Iowa Rule of Criminal Procedure 2.8(2)(b). For the reasons

expressed below, we conclude the district court’s sentencing order does

not comply with Iowa Rule of Criminal Procedure 2.23(3)(d), and as a

result, we vacate the sentence and remand the matter to the district

court for resentencing. With respect to the defendant’s claim that her

plea was not voluntary, we conclude the issue cannot be resolved in this

direct appeal and therefore reserve this claim for a postconviction-relief

action.

I. Factual and Procedural Background.

The minutes of testimony in this case state that on October 4,

2013, a supervisor at the Des Moines Area Regional Transit facility

notified police regarding a customer, Tina Thacker, who was screaming

profanities at customer service. As the supervisor tried to calm her

down, Thacker saw a bus driver, Donald Robuck, which caused her to

renew her screaming. Among other things, she screamed she was going

to find out where Robuck lived. The minutes state Robuck had been the

driver of a bus boarded by Thacker. When Thacker asked Robuck to

turn on the air conditioner, the system blew out hot air. Thacker then

became incensed, used obscenities, and threatened to kill Robuck. 3

Thacker was charged by trial information with harassment in the

first degree, an aggravated misdemeanor, in violation of Iowa Code

section 708.7(2) (2013). The charge was apparently resolved by a plea

agreement.

The plea agreement, however, is not part of the record. What is

part of the record is a form entitled “Petition to Plead Guilty to Serious

Misdemeanor.” The form contains an entry stating “the plea agreement

is:” but nothing was entered on the lines provided. The terms of the plea

agreement were left blank. There is nothing in the record to indicate

whether this was an intentional or unintentional omission. The

defendant waived her right to have the proceedings recorded.

On the same day the Petition to Plead Guilty to Serious

Misdemeanor was filed, the district court, also using a form, accepted the

plea agreement and imposed a sentence. The form contained the

following boilerplate language: “The following sentence is based on all of

the available SENTENCING CONSIDERATIONS set out in Iowa Code

Section 907.5.” The district court checked the box “The Plea Agreement”

as being the factor that was “the most significant in determining [the]

particular sentence.”

The district court ordered Thacker to serve one year in jail but

suspended the sentence. The district court placed Thacker on probation

for a period of one year with the Iowa Department of Correctional

Services. The district court imposed conditions of probation which

required Thacker to (1) complete any recommended substance abuse

treatment, (2) cooperate and complete a VORP (Victim-Offender

Reconciliation Program) session with each victim who so desires, (3)

complete an assaultive behavior class, (4) participate in substance abuse

monitoring by urine analysis during the term of probation, and (5) 4

complete a psychological evaluation and follow through with any

recommended treatment. The district court further dismissed a related

simple misdemeanor charge and ordered Thacker not to have contact

with the victim for a period of five years. Additionally, the district court

ordered Thacker to pay a fine of $315, the statutory surcharges,

restitution, court costs, and attorney fees. Thacker appealed. We

transferred the case to the court of appeals.

On appeal, Thacker raised two issues. First, she claimed the

district court erred by not stating adequate reasons on the record for the

exercise of the district court’s sentencing discretion as required by Iowa

Rule of Criminal Procedure 2.23(3)(d). Second, she claimed she received

ineffective assistance of counsel because she did not knowingly and

voluntarily enter into her plea agreement.

A divided court of appeals rejected Thacker’s arguments. With

respect to the claim that the district court failed to give adequate reasons

for her sentence, the court of appeals held that the district court was

merely giving effect to the parties’ agreement and that no further

statement of reasons was required. On the question of whether she

received ineffective assistance of counsel because she did not intelligently

and voluntarily enter into the plea agreement, the court of appeals held

that Thacker failed to show prejudice. A dissent asserted the district

court abused its discretion in citing a plea agreement as its reason for

the sentence, when no plea agreement was apparent in the record. The

dissent further took the position that the record was inadequate to

resolve the ineffective-assistance-of-counsel claim.

We granted further review. For the reasons expressed below, we

now vacate Thacker’s sentence and remand the case to the district court

for further proceedings. We also conclude the record is inadequate to 5

resolve the ineffective-assistance claim on direct appeal and reserve that

claim for a postconviction-relief action.

II. Standard of Review.

A. Review of District Court Sentencing Order. When “the

sentence imposed is within the statutory maximum, we will only interfere

if an abuse of discretion is shown.” State v. Luedtke, 279 N.W.2d 7, 8

(Iowa 1979). In exercising discretion, the district court must “weigh all

pertinent matters in determining a proper sentence, including the nature

of the offense, the attending circumstances, the defendant’s age,

character, and propensities or chances for reform.” State v. Johnson,

476 N.W.2d 330, 335 (Iowa 1991). Errors in sentencing, including

contentions the trial court failed to articulate adequate reasons for a

particular sentence, “may be challenged on direct appeal even in the

absence of an objection in the district court.” State v. Lathrop, 781

N.W.2d 288, 292–93 (Iowa 2010).

B. Ineffective Assistance of Counsel. “We review ineffective

assistance of counsel claims de novo.” State v. Williams, 574 N.W.2d

293, 300 (Iowa 1998). When a defendant seeks to have an ineffective-

assistance claim resolved on direct appeal, the defendant must establish

that the record is adequate to allow the appellate court to determine the

issue. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). If the

record is inadequate on appeal, the issue must be addressed in an action

for postconviction relief. Id.

III. Discussion of On-the-Record Disclosure of Reasons for Sentencing.

A. Background to Iowa Rule of Criminal Procedure 2.23(3)(d).

Unlike most European countries in which judicial sentences are

reviewable as a matter of law, appellate courts in the United States have 6

historically adopted a hands-off approach to criminal sentencing. See

Ronald M. Labbe, Appellate Review of Sentences: Penology on the Judicial

Doorstep, 68 J. Crim. L. & Criminology 122, 122 (1977) [hereinafter

Labbe]. In the 1960s and 1970s, considerable attention in professional

and academic communities was devoted to considering the relatively

uncontrolled nature of criminal sentencing in our courts. 1 Judge Simon

E. Sobeloff of the United States Court of Appeals for the Fourth Circuit

stimulated the debate through his academic writings and public

remarks. See Remarks of Judge Sobeloff, Appellate Review of Sentences:

A Symposium at the Judicial Conference of the United States Court of

Appeals for the Second Circuit, 32 F.R.D. 249, 264–75 (1962); Simon

Sobeloff, A Recommendation for Appellate Review of Criminal Sentences,

21 Brook. L. Rev. 2 (1955); Simon E. Sobeloff, The Sentence of the Court:

Should There Be Appellate Review?, 41 A.B.A. J. 13 (1955).

In the early 1970s, the torch of reform was carried by Judge

Marvin Frankel who, in a seminal law review article, canvassed what he

called “lawlessness in sentencing.” Marvin E. Frankel, Lawlessness in

Sentencing, 41 U. Cin. L. Rev. 1 (1972). Among other things, Judge

Frankel emphasized the advantages of giving reasons for discretionary

sentencing. Frankel noted “the giving of reasons helps the decision-

maker himself in the effort to be fair and rational, and makes it possible

for others to judge whether he has succeeded.” Id. at 9. Similar

observations were made by Judge Irving Kaufman, who noted that

explanations of sentences “would exert a beneficial influence to

1The Iowa Law Review published one major article participating in the commentary. See Michael C. Berkowitz, The Constitutional Requirement for a Written Statement of Reasons and Facts in Support of the Sentencing Decision: A Due Process Proposal, 60 Iowa L. Rev. 205 (1974) [hereinafter Berkowitz]. 7

rationalize the procedure which now is too easily characterized as

capricious,” Irving R. Kaufman, Foreword: The Sentencing Process and

Judicial Inscrutability, 49 St. John’s L. Rev. 215, 222 (1975), and would

give some reassurance to the criminal “that his liberty is not being

revoked in a wholly arbitrary fashion,” id. at 221.

The notion that judges should state their reasons for sentencing on

the record gained professional support. As early as 1968, the American

Bar Association proposed that sentencing judges be required to state

their reasons for selection of a sentence on the record so that a court

could exercise its power of judicial review. See ABA Project on Standards

for Criminal Justice, Standards Relating to Appellate Review of Sentences

§ 2.3(c) & cmt. e, at 42, 47 (1968) (noting that “a statement of reasons

will be invaluable as an aid to the reviewing court [as] it is difficult to see

how meaningful review can occur . . . where the appellate court is left

completely in the dark as to why the sentence under review was

imposed”). The adoption of the ABA Standards led to a reconsideration

of the approach to sentencing in a number of states. See Labbe, 68 J.

Crim. L. & Criminology at 123 (canvassing trends).

In the 1970s, we considered whether to adopt an ABA-type rule.

In State v. Horton, 231 N.W.2d 36, 40–42 (Iowa 1975) (McCormick, J.,

concurring specially), Justice McCormick wrote a special concurrence in

which he advocated adoption of a requirement that district court judges

express reasons for sentencing on the record. Justice McCormick

emphasized the anomaly that, with respect to sentencing, “the exercise of

this power, among the greatest that one person may exercise over the life

of another, is virtually unreviewable.” Id. at 40. He noted four basic

reasons for the adoption of the requirement that the reasons for

sentencing be placed on the record: (1) increasing the rationality of 8

sentencing, (2) the therapeutic value of sentencing on the defendant, 2 (3)

ensuring meaningful appellate review of the sentence, and (4) informing

correctional authorities of the reasoning behind a sentence. Id. at 41.

He further noted that a requirement that a district court state reasons

for sentencing on the record could promote consistency and assist in the

rational development of uniform sentencing. Id. 3

Nonetheless, in the 5–4 decision in State v. Peckenschneider, 236

N.W.2d 344, 348 (Iowa 1975) (en banc), we declined to adopt the ABA

approach and require district courts to express reasons for sentencing on

the record. Justice McCormick wrote the dissenting opinion, reprising

the reasoning of his Horton special concurrence. Compare id. at 348–56

(McCormick, J., dissenting), with Horton, 231 N.W.2d at 40–42. In State

v. Harvey, 236 N.W.2d 47, 49 (Iowa 1975) (McCormick, J., specially

concurring), an opinion released on the same day as Peckenschneider,

Justice McCormick again wrote a concurring opinion, stating that our

refusal to accept ABA standards as mandatory criteria to be applied in

sentencing “permits perpetuation of the inequities, disparities, and

2See generally Jerry L. Mashaw, Due Process in the Administrative State 199 (1985) (emphasizing that some sort of explanation for a decision remains necessary if we are to conceive genuinely of the individual as an “autonomous moral agent entitled to self-respect”). 3Recent scholarship has emphasized the role of sentence explanation in limiting the appearance of bias and lessening the risk of cognitive bias, including racial bias. See Berkowitz, 60 Iowa L. Rev. at 208–09, 233–34 (noting role of written explanation in addressing perception and reality of racial bias); Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 36–38 (2007) (suggesting that requiring explanations should induce deliberation and reduce intuitive or impressionistic reactions that may be biased); Michael M. O’Hear, Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences, 93 Marq. L. Rev. 751, 759–60 (2009) (noting that requiring judges to explain the basis for their decisions tends to increase perception of neutrality, mitigate against cognitive bias, and lead to better consideration of the full range of information). 9

unfairness which have led to substantial justified criticism of sentencing

practices.”

While Justice McCormick’s views did not prevail in our court, the

legislature took action. In 1977, the legislature enacted a statutory

provision, which provided that “[t]he court shall state on the record its

reason for selecting the particular sentence.” 1977 Iowa Acts ch. 153,

§ 66 (currently found in Iowa R. Crim. P. 2.23(3)(d)).

B. Caselaw Under Iowa Rule of Criminal Procedure 2.23(3)(d).

We have been called upon to interpret and apply Iowa Rule of Criminal

Procedure 2.23(3)(d) in a number of cases. Many have noted that by

requiring reasons for a particular sentence to be on the record, a

reviewing court will be able to assess whether there has been an abuse of

discretion in sentencing. See State v. Thompson, 856 N.W.2d 915, 919

(Iowa 2014); State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996). We have

noted that without such a record “we could [not] discern [whether there

had been] any abuse of sentencing discretion.” Luedtke, 279 N.W.2d at

8. It is apparent from the cases that one of the important reasons for the

rule is to preserve the appellant’s right to challenge the exercise of

discretion by the sentencing judge. See id. We have also recognized the

value of particularized statements in ensuring criminal defendants are

aware of the consequences of their criminal actions. See Thompson, 856

N.W.2d at 919; State v. Lumadue, 622 N.W.2d 302, 305 (Iowa 2001) (en

banc).

While the rule requires a statement of reasons on the record, a

“terse and succinct” statement may be sufficient, “so long as the brevity

of the court’s statement does not prevent review of the exercise of the

trial court’s sentencing discretion.” State v. Johnson, 445 N.W.2d 337,

343 (Iowa 1989). A terse and succinct statement is sufficient, however, 10

only when the reasons for the exercise of discretion are obvious in light of

the statement and the record before the court. See, e.g., State v. Victor,

310 N.W.2d 201, 205 (Iowa 1981) (noting it was “clear from the trial

court’s statement exactly what motivated and prompted the sentence”

(emphasis added)). When the reasons for a particular sentence have not

been stated on the record, however, we have vacated the sentence and

remanded the case to the district court for resentencing. See, e.g., State

v. McKeever, 276 N.W.2d 385, 388–90 (Iowa 1979); State v. Thompson,

275 N.W.2d 370, 372 (Iowa 1979).

We have rejected a boilerplate-language approach that does not

show why a particular sentence was imposed in a particular case. In

Lumadue, 622 N.W.2d at 304, we considered boilerplate language in a

written order that provided, “The court has determined that this sentence

will provide reasonable protection of the public. Probation is denied

because it is unwarranted.” We concluded such language, standing

alone, did not satisfy the requirement that the district court make an on-

the-record statement of reasons for imposing a particular sentence. Id.

at 304–05. 4

In a somewhat similar vein, the court of appeals in State v. Cooper, 403 N.W.2d 800, 802 (Iowa Ct. App. 1987), considered the statement:

“[t]he Court has reviewed the circumstances of the offense, and the

4A leading federal appellate decision relating to such boilerplate language is

United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005). In Cunningham, Judge Posner rejected the position that a judge could employ a stamp which declared that he or she had considered the statutory factors required in sentencing. Id. at 676. Such a position, according to Judge Posner, was inconsistent with appellate review of sentences. Id. at 679. The decision in Cunningham has been undermined, however, by Rita v. United States, 551 U.S. 338, 357–59, 127 S. Ct. 2456, 2469, 168 L. Ed. 2d 203, 218–19 (2007), in which the Supreme Court found that implicit explanation of sentences may be sufficient to affirm the reasonableness of a sentence under federal law. 11

defendant’s prior background.” The court of appeals held that such

vague and generalized comments were inadequate under the rule. Id.

The Cooper court emphasized that “appellate courts should not be forced

to rely on post hoc attempts at divining the district court’s motivation

from the entirety of the record in order to determine if the district court

abused its discretion.” Id.

We have also considered what the rule requires in the context of a

plea bargain. In State v. Snyder, 336 N.W.2d 728, 729 (Iowa 1983), the

defendant entered a plea bargain with the state. There was no claim the

state or the court departed from the terms of the plea bargain. See id.

We held that a statement of reasons for the sentence was not required

because “[t]he sentence of imprisonment was . . . not the product of the

exercise of trial court discretion but of the process of giving effect to the

parties’ agreement.” Id. Similarly, in State v. Cason, 532 N.W.2d 755,

756–57 (Iowa 1995) (per curiam), we again considered the impact of a

plea bargain on the district court’s obligation to state on the record the

reasons for a particular sentence. We held that a sentencing court does

not abuse its discretion for failing to state sufficient reasons for imposing

a sentence if it “was merely giving effect to the parties’ agreement.” Id.

In contrast to Snyder and Cason, in Thompson, 856 N.W.2d at

917–18, we considered a case in which the district court elected not to

follow the sentence agreed to by the parties in a plea bargain. In this

setting, we held the district court was required to state on the record his

or her reasons for exercising his or her discretion in imposing a sentence

different from that agreed to by the parties. Id. at 920–21.

The failure of the district court to adequately cite its reasons for a

sentence on the record is ordinarily reversible error. See, e.g., Lumadue,

622 N.W.2d at 304–05 (remanding for resentencing when trial court used 12

boilerplate language in sentencing order which did not adequately state

reasons related to “this” defendant and “this” offense); Uthe, 542 N.W.2d

at 816 (requiring resentencing when court failed to adequately explain its

imposition of consecutive sentences); Cooper, 403 N.W.2d at 802

(vacating sentence and remanding for resentencing after finding

sentencing record inadequate); see also Commonwealth v. Johnson, 541

A.2d 332, 340 (Pa. Super. Ct. 1988) (noting failure to provide adequate

“statement of reasons for the sentence imposed is reversible error

requiring resentencing”). One of the main purposes of requiring specific

reasons is to provide a record sufficient to allow meaningful appellate

review, see, e.g., Uthe, 542 N.W.2d at 816; Luedtke, 279 N.W.2d at 8,

which is afforded as a matter of right to most criminal defendants, see

Iowa R. Crim. P. 2.23(3)(e) (detailing notification of right to appeal

regarding indictable offenses); id. r. 2.73(1) (noting the appropriate

procedures regarding a right to appeal in a simple misdemeanor case).

There have, however, been unusual circumstances when we have

applied a harmless error approach to cases in which the district court

failed to state its reasons on the record. In State v. Matlock, 304 N.W.2d

226, 228 (Iowa 1981), we held a district court that failed to state its

reasons on the record did not commit reversible error when it sentenced

the defendant to the least severe sentence authorized by law. A remand

for resentencing in Matlock could not possibly have benefited the

defendant under these narrow circumstances.

In one other case, State v. Alloway, 707 N.W.2d 582, 587 (Iowa

2006), overruled by Thompson, 856 N.W.2d at 921, we rejected an appeal

involving a claim the trial court did not adequately state reasons on the

record for a sentence for lack of prejudice. The defendant’s claim in

Alloway, however, was presented as a claim of ineffective assistance of 13

counsel in which a showing of prejudice is ordinarily required. Id. In

Alloway, we applied the rule that a defendant who waives the making of

a record of sentencing must take steps to create an alternate record

through a bill of exceptions or a supplemental statement. Id. at 586. In

Thompson, 856 N.W.2d at 921, however, we reversed the caselaw upon

which Alloway was based. The Alloway approach requiring a showing of

prejudice thus has no continued vitality.

C. Application of Principles. The State suggests Thacker failed

to preserve error in this case by failing to address the lack of record by

either requesting a bill of exceptions or expanding the record pursuant to

the rules of appellate procedure. We took such an approach in Alloway

based on prior precedent. During the pendency of this case, however, we

overruled the Alloway approach in Thompson, 856 N.W.2d at 921. In

Thompson, we declared that the responsibility to develop the record

rested with the court, not one of the parties. Id. As a result, the State’s

argument on this point is without merit.

We next turn to language in the sentencing order form. The

district court order is on a form that states in boilerplate fashion that the

district court considered all the relevant factors required by law in

imposing the sentence. It is clear under our precedents, however, that

such boilerplate language, standing alone, is insufficient to satisfy Iowa

Rule of Criminal Procedure 2.23(3)(d). See Lumadue, 622 N.W.2d at

304–05. The boilerplate form is identical for all cases and tells us

nothing about how the district court arrived at a particular sentence in a

particular case. See id.; Cooper, 403 N.W.2d at 802.

Here, the district court checked the box for “The Plea Bargain” as

the most significant factor in its sentencing decision. The question

arises, then, whether this case falls within the Snyder-Cason principle 14

that when a district court simply imposes a sentence agreed to by the

parties it does not exercise discretion in a fashion that requires a

statement of reasons on the record.

The problem with this theory, however, is that we do not know

from the record whether the particulars of the district court’s sentence

were agreed to by the parties. Although we know there is a plea

agreement of some kind, the Petition to Plead Guilty to Serious

Misdemeanor is silent on the terms of the plea agreement. What we

simply do not know is whether the plea bargain had an agreed upon

recommendation for the sentence or whether the parties only agreed that

the State would drop the more serious harassment charge if the

defendant pled guilty to a lesser offense. While the district court

considered the plea agreement in its sentence, apparently, the

consideration given could have been that the more serious charge had

been dismissed and the only crime for which the defendant should be

sentenced was now a serious misdemeanor. Further, even if there was

an agreed upon recommendation for sentencing, we do not know from

the record whether the district court followed it in every particular or

deviated from it in some respects. We are left to speculate on these

questions.

As a result, we cannot conclude the district court has adequately

stated reasons for its sentence on the record as required under Iowa Rule

of Criminal Procedure 2.23(3)(d). While terse reasoning can be adequate

when we know the statement in the context of the record demonstrates

what motivated the district court to enter a particular sentence, see

Johnson, 445 N.W.2d at 343, we cannot guess or simply calculate the

rough probabilities. Looking on the record, we do not know whether the

district court exercised its discretion, simply accepted the parties 15

agreement, or did a little of both. We therefore vacate the sentence and

remand the matter to the district court for further proceedings.

On remand, if the district court determines it merely gave effect to

the parties’ agreement and exercised no discretion in sentencing other

than to accept the plea agreement as advanced by the parties, it should

make the particulars of the plea agreement with respect to the sentence a

part of the record. See Matlock, 304 N.W.2d at 228 (“If the court has no

discretion in sentencing, it should so state.”). If, on the other hand, the

parties did not come to an agreement with respect to the particulars of

the sentence or the district court departed from any agreement the

parties may have had, then the district court exercised discretion and, as

a result, must make a statement on the record as to why it exercised its

discretion in the way it did. On remand, there is no requirement the

district court arrive at a different sentence, but only that it satisfy the

requirements of Iowa Rule of Criminal Procedure 2.23(3)(d).

IV. Knowing and Voluntary Guilty Plea.

Iowa Rule of Criminal Procedure 2.8(2)(b) requires the district court

to determine “that the [defendant’s] plea is made voluntarily and

intelligently and has a factual basis.” Thacker contends she did not

knowingly and voluntarily enter into the written plea bargain in this

case.

This case involves a serious misdemeanor. In State v. Meron, 675

N.W.2d 537, 543 (Iowa 2004), we held the district court, with the

defendant’s consent, may waive the in-court colloquy otherwise required

by Iowa Rule of Criminal Procedure 2.8(2)(b). Nonetheless, we

emphasized that allowing written waivers does not diminish the

importance and necessity of the court’s role to ensure each plea is

voluntary, intelligent, and supported by the facts. Id. 16

The record before us, however, simply does not allow us to

determine whether Thacker entered into the plea voluntarily and

intelligently. We also cannot determine on the record whether she was

prejudiced. As a result, we decline to address the ineffective-assistance-

of-counsel issue on direct appeal. A determination of the ineffectiveness

claim must be made in an action for postconviction relief to “allow a

record to be developed concerning the actual terms of the plea agreement

and [Thacker’s] understanding of the terms of the plea agreement.” State

v. Philo, 697 N.W.2d 481, 489 (Iowa 2005).

V. Conclusion.

For the above reasons, the sentence in this case is vacated and the

matter remanded to the district court for resentencing.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT SENTENCE VACATED AND CASE REMANDED WITH

INSTRUCTIONS.

All justices concur except Mansfield, J., Cady, C.J., and

Waterman, J., who dissent. 17 #14–0374, State v. Thacker MANSFIELD, Justice (dissenting).

I respectfully dissent and would affirm Thacker’s sentence.

According to the minutes of testimony, this incident began when

Thacker was picked up at a bus route along Ingersoll Avenue in

Des Moines on October 4, 2013. Thacker told the bus driver, Donald

Robuck, that someone who owed her money had been chasing her. She

asked Robuck to turn on the air conditioning, but when he did so, the

system blew hot air. This incensed Thacker, who began calling Robuck a

“fat m***** f*****” and threatened to kill him.

On arrival at the bus depot in downtown Des Moines, Thacker

went to customer service and caused a disruption by screaming

profanities. Efforts to calm her down were unsuccessful. Thacker

attempted to follow Robuck and a supervisor outside, but got stuck in a

revolving door. She started kicking the door until it began to move.

When Thacker saw Robuck leaving for his next route, she screamed at

him that she was going to find out where he lived.

Thacker was charged with first-degree harassment, an aggravated

misdemeanor, and disorderly conduct, a simple misdemeanor. See Iowa

Code § 708.7(2) (2013); id. § 723.4(2). On February 7, 2014, the charges

were disposed of when Thacker pled guilty to the lesser included offense

of second-degree harassment, a serious misdemeanor, and received a

one-year suspended sentence and probation. See id. § 708.7(3). The

record includes Thacker’s petition to plead guilty to a serious

misdemeanor (which includes a written waiver of rights signed by her)

and the district court’s written sentencing order, which lists the plea

agreement as the only reason for the sentence imposed. The sentencing 18

order also indicates that Thacker waived reporting and recording of the

sentencing hearing.

The district court is required to state the reason or reasons for a

particular sentence on the record. See Iowa R. Crim. P. 2.23(3)(d) (“The

court shall state on the record its reason for selecting the particular

sentence.”). “The district court can satisfy this requirement by orally

stating the reasons on the record or placing the reasons in the written

sentencing order.” State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014).

However, as the majority acknowledges, when the defendant’s sentence

is based upon a plea agreement, the court provides a sufficient reason or

reasons when it cites the plea agreement as the reason for the sentence.

See State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995) (per curiam). The

district court did so here.

In Thompson, we overruled prior precedent and held that even

when a defendant waives reporting of the sentencing hearing, the

defendant does not thereby waive the requirement that the district court

provide the reason or reasons for the sentence on the record. See

Thompson, 856 N.W.2d at 920–21. The present case is not a Thompson

case. Unlike the sentencing order in Thompson, see id. at 918, the

sentencing order here states the reason for the sentence, namely, the

plea agreement, and that reason is a legally sufficient one.

Thacker, thus, wants to take Thompson a step further. She wants

to establish a rule that when the sentence is based on a plea agreement,

either the written plea agreement or the hearing transcript setting forth

the terms of the plea agreement must be included in the record. This is

intended to be a check so the appellate court can verify that the district

court did, indeed, follow the plea agreement in its sentencing order. 19

Whatever the potential merits of this rule in the abstract, I think it

makes no sense to apply it unless the defendant is asserting the

sentence did not comply with the plea agreement. Thacker makes no

such assertion. In fact, Thacker does not challenge her underlying

sentence at all, for example, by claiming it is too harsh or restrictive. All

we have here is her appellate attorney’s contention that one cannot tell

from the record whether the sentence imposed is actually consistent with

the plea agreement. Presumably, appellate counsel has asked Thacker,

or Thacker’s trial counsel, whether the sentence is consistent with the

plea agreement. The briefing should disclose the answer to this

question. Since sentencing proceedings come with a presumption of

regularity, see, e.g., State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001); State

v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998), it seems unfair to assume—

in the absence of any claim by the defendant—that an irregularity might

have occurred.

The court’s approach appears to elevate form over substance. That

is, it remands the case for expansion of the record even when the

defendant is not complaining about the result. The effect of the court’s

approach will be to require another layer of documentation in

misdemeanor cases. I think the limited resources of our criminal justice

system can best be deployed elsewhere.

For the foregoing reasons, I dissent.

Cady, C.J., and Waterman, J., join this dissent.