State of Iowa v. Emmanuel J. Berryman

• Court: Court of Appeals of Iowa
• Decided: May 14, 2014
• Docket: 13-1260
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 13-1260 Filed May 14, 2014

STATE OF IOWA, Plaintiff-Appellee,

vs.

EMMANUEL J. BERRYMAN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.

Defendant appeals his sentencing for domestic abuse assault resulting in

bodily injury and petitions for a writ of certiorari for his contempt punishment.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Martha Trout, Assistant Attorney

General, Michael J. Walton, County Attorney, and Amy Devine and Steve Berger,

Assistant County Attorneys, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ. 2

MULLINS, J.

Emmanuel J. Berryman appeals a sentence of ninety days in jail for

domestic abuse assault resulting in bodily injury and a fifty-day term of

incarceration for contempt. Berryman argues the district court erred in failing to

provide specific reasons for ordering consecutive sentences. We affirm

Berryman’s sentence on the criminal conviction and annul the writ challenging his

term of incarceration for contempt.

I. BACKGROUND FACTS AND PROCEEDINGS.

In February 2013, a criminal complaint was filed against Emmanuel

Berryman alleging he committed domestic abuse assault resulting in bodily

injury. On the same day, a no contact order was entered restraining Berryman

from any contact with the victim. The State filed a trial information in March,

charging Berryman with domestic abuse assault resulting in bodily injury and

domestic abuse assault by strangulation. In June, the State filed a complaint

alleging Berryman violated the no-contact order.

At the July plea and sentencing hearing, Berryman stipulated he violated

the no-contact order and entered a guilty plea to the domestic abuse assault

resulting in bodily injury charge, pursuant to a comprehensive plea agreement.

The State agreed to dismiss the charge of domestic abuse assault by

strangulation. The State recommended a ninety-day jail term for contempt, as

punishment for Berryman’s violation of the no-contact order, and a ninety-day jail

term for domestic abuse assault resulting in bodily injury. The State argued the

jail terms should run consecutively, while Berryman argued the jail terms should 3

be concurrent. After accepting Berryman’s guilty plea to the charge of domestic

abuse assault resulting in bodily injury, the district court sentenced Berryman to a

ninety-day jail term for domestic abuse assault resulting in bodily injury and

imposed a fifty-day jail term for contempt. The court ordered the jail terms be run

consecutively and dismissed the charge for domestic abuse assault by

strangulation. Berryman filed a timely notice of appeal of the sentences in

August 2013.

II. PRESERVATION OF ERROR.

Berryman timely filed a notice of appeal for his sentence for domestic

abuse assault resulting in injury. However, a defendant punished for contempt

has no right to appeal. Iowa Code § 665.11 (2013). A defendant may challenge

a finding of contempt by filing a writ of certiorari. Id. Berryman requests his

notice of appeal be treated as a petition for writ of certiorari to the extent his

appeal challenges his punishment for contempt. The State argues the appeal

should not be considered because Berryman failed to petition for writ of certiorari.

Iowa Rule of Appellate Procedure 6.108 states that if “the appellate court

determines another form of review was the proper one, the case shall not be

dismissed, but shall proceed as though the proper form of review had been

requested.” We grant Berryman’s request and will treat this appeal as a writ of

certiorari to the extent it challenges Berryman’s punishment for contempt.

III. STANDARD OF REVIEW.

We review sentencing decisions for correction of errors at law. State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002). When a sentence does not fall 4

outside statutory limits, we will overturn the sentence only “for an abuse of

discretion or the consideration of inappropriate factors.” Id. Punishment for

contempt requires interpretation of a statute; thus our review is for correction of

errors of law. State v. Mott, 731 N.W.2d 392, 394 (Iowa 2007).

IV. ANALYSIS.

A district court must give reasons for “selecting a particular sentence” and

“its decision to impose consecutive sentences.” State v. Jacobs, 607 N.W.2d

679, 690 (Iowa 2000). The district court here did state on the record reasons for

imposing the sentence but did not specify why it imposed a “consecutive

sentence.” Berryman argues the district court erred by not giving sufficient

reasons for imposing a consecutive sentence. The State argues the district court

did not impose consecutive sentences but instead imposed one sentence for

domestic abuse assault resulting in injury and one punishment for contempt.

Because only one jail term was a sentence, the district court did not err by not

giving reasons for ordering the jail terms to run consecutively.

The Iowa Supreme Court held in Mott that a term of incarceration for

contempt is not a sentence but a punishment. 731 N.W.2d at 394. Contempt is

not a criminal offense but is the way in which a court may punish certain actions

by a defendant. Id.; see also Iowa Code § 665.2 (providing which acts constitute

contempt); Iowa Code § 664A.7 (providing that a violation of a no-contact order is

“punishable by summary contempt proceedings”). The Mott court held that a

sentence for assault and a punishment for contempt did not constitute

“consecutive sentences” under Iowa Code section 901.8, even when the 5

defendant was given two terms of incarceration. 731 N.W.2d at 394. Instead,

the two terms of incarceration are isolated from one another, even if one begins

immediately after the first ends. See id.

Berryman relies upon section 901.5(9)(c), which requires the district court

to announce “[i]n the case of multiple sentences, whether the sentences shall be

served consecutively or concurrently.” This code section does not apply to

Berryman because he was not given “multiple sentences”—he was given one

sentence for a criminal offense and one punishment of incarceration for

contempt. It necessarily follows from Mott that since Berryman was sentenced to

jail for domestic abuse assault resulting in injury and also punished for contempt

by a term of incarceration, then Berryman’s terms of incarceration are not

“consecutive sentences.” See id. Because Berryman was not sentenced to

“consecutive sentences,” the district court was not required to give specific

reasons for ordering Berryman to serve two terms of incarceration, one beginning

after the other ends. Berryman’s sentence is there affirmed, and the writ

challenging the punishment for contempt is annulled.

AFFIRMED; WRIT ANNULLEED.