State of Iowa v. Johnathan Dale Laue

• Court: Court of Appeals of Iowa
• Decided: December 6, 2023
• Docket: 23-0208
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0208 Filed December 6, 2023

STATE OF IOWA, Plaintiff-Appellee,

vs.

JOHNATHAN DALE LAUE, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, Kevin Parker,

District Associate Judge.

Johnathan Laue appeals the sentence and fine imposed by the district

court. AFFIRMED AND REMANDED.

John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Thomas E. Bakke and Genevieve

Reinkoester, Assistant Attorneys General, for appellee.

Considered by Bower, C.J., and Ahlers and Chicchelly, JJ. 2

CHICCHELLY, Judge.

Jonathan Laue appeals the sentence and fine imposed after pleading guilty

to driving while barred.1 Following a hearing, the district court sentenced Laue to

two years of incarceration, a fine of $855.00, a criminal penalty surcharge of fifteen

percent, payment of court costs, and court-appointed attorney’s fees. Laue

challenges the decision to sentence him to incarceration instead of probation and

the court’s written order imposing a fine, which deviated from the court’s oral

pronouncement. We affirm his sentence but remand to the district court to correct

the clerical error in the written sentencing order.

We review Laue’s sentence for an abuse of discretion. See Damme, 944

N.W.2d at 105–06 (stating that a sentence that falls within statutory limits “is

cloaked with a strong presumption in its favor and will only be overturned for an

abuse of discretion or the consideration of inappropriate matters” (citation

omitted)). We afford the district court considerable latitude in imposing sentence

rather than second-guessing its decision. See id. at 106. The court abuses its

discretion when it bases its decision “on grounds or for reasons that were clearly

untenable or unreasonable.” Id. (citation omitted).

In determining its sentence, the district court considered, “the protection of

the public, the gravity of the offense, [Laue]’s criminal history, and [his]

rehabilitative needs.” The court also referenced that Laue was on probation for

1 Iowa Code section 814.6(1)(a)(3) (2023) provides a right of appeal following a

guilty plea only “for a class ‘A’ felony or in a case where the defendant establishes good cause.” Because “good cause exists to appeal from a conviction following a guilty plea when the defendant challenges [the] sentence rather than the guilty plea,” State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020), we proceed to the merits of Laue’s appeal. 3

two convictions of driving while barred when he committed the present offense.

Laue had been incarcerated for both convictions. The court cited that this was

Laue’s ninth conviction of driving while barred and then noted Laue had “been

thumbing [his] nose” by continuing to drive without permission.

In arguing the court abused its discretion in imposing a term of

incarceration, Laue relies heavily on the presentence investigation report’s

recommendation for a suspended sentence. Additionally, Laue refers to his

personal and family circumstances in arguing for a strictly probationary sentence.

But Laue fails to show the district court abused its discretion in imposing sentences

of incarceration. A different judge on a different day may have imposed a different

sentence, but that does not amount to an abuse of discretion. See, e.g., State v.

Seats, 865 N.W.2d 545, 553 (Iowa 2015) (“Judicial discretion imparts the power to

act within legal parameters according to the dictates of a judge’s own conscience,

uncontrolled by the judgment of others. It is essential to judging because judicial

decisions frequently are not colored in black and white. Instead, they deal in

differing shades of gray, and discretion is needed to give the necessary latitude to

the decision-making process.” (citation omitted)). The district court provided valid

reasons for rejecting probation and that support the sentences imposed. See id.

(stating that “a district court did not abuse its discretion if the evidence supports

the sentence”).

Both parties agree that the written sentencing order incorrectly imposed a

fine of $855.00 and a fifteen percent criminal penalty surcharge rather than

suspend the fine, as articulated from the bench. This mistake appears to have

been a clerical error. “An error is clerical in nature if it is not the product of judicial 4

reasoning and determination.” State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995).

“[W]hen the record unambiguously reflects that a clerical error has occurred, we

will direct the district court to enter a nunc pro tunc order to correct the judgment

entry.” Id. Thus, we affirm Laue’s sentence for driving while barred and remand

for the district court to correct the error by issuance of an order nunc pro tunc.

AFFIRMED AND REMANDED.

Bower, C.J., concurs; Ahlers, J., partially dissents. 5

AHLERS, Judge (concurring in part and dissenting in part).

I agree with and join that part of the majority decision concluding that the

discrepancy between the district court’s oral pronouncement of sentence and the

terms of the subsequent written sentencing order requires enforcement of the oral

pronouncement. See State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995). I part

ways with respect to the remedy chosen by the majority—remanding the case with

direction to the district court to issue an order nunc pro tunc to make the written

sentencing order consistent with the oral pronouncement. While I agree this is the

usual remedy, see id. at 529, I do not believe this is a statutorily permissible

remedy here. That is because the oral pronouncement imposed an illegal

sentence, and we should not remand the case with the direction to impose an

illegal sentence.2

To set the stage for the discussion of why I conclude the sentence imposed

was illegal, I start with the sentencing terms announced at the sentencing hearing.

In addition to imposing a two-year prison term, the district court imposed the

minimum fine of $855.00 and suspended it. I see no problem with the term of

incarceration. The problem lies with the fine. I believe suspension of part of the

sentence—in this case, the fine—without placing Laue on probation amounts to an

illegal sentence.

2 As the issue is one of an illegal sentence and illegal sentences may be corrected

at any time, our appellate courts have authority to correct the sentence even when neither party raises the issue. State v. Wieneke, No. 20-0126, 2021 WL 219222, at *1 (Iowa Jan. 22, 2021). We issued an order requesting supplemental briefing from the parties to address this issue. The order made supplemental briefing optional, and neither party submitted a supplemental brief. 6

My reasoning starts with the principle that “[s]entencing is wholly a creature

of statute,” which limits the court to “impos[ing] only a sentence authorized by

statute.” Wieneke, 2021 WL 219222, at *1. To try to find the authority for the

sentence imposed here, Iowa Code section 901.5 (2022) is the place to start.

Section 901.5 provides the district court the general authority and obligation to

impose a criminal sentence. That section gives the sentencing court a variety of

options. Iowa Code § 901.5. As the district court attempted to suspend part of the

sentence, the specific option at issue here is that found in section 901.5(3), which

gives the sentencing court the authority to impose a fine, a term of incarceration,

or both, and then “suspend the execution of the sentence or any part of it as

provided in chapter 907.” Id. § 901.5(3). As this option points us to chapter 907,

we look there next.

Section 907.3 lays out various sentencing options. As a suspended

sentence is at issue here, section 907.3(3) controls, as it is the option dealing with

suspending any part of the sentence. Section 907.3(3) tells us “the court may

suspend the sentence and place the defendant on probation upon such terms and

conditions as it may require.” (Emphasis added.) As the emphasized passage

points out, the authority to suspend part of a sentence comes with the obligation

to place the defendant on probation.3 Further support for the conclusion that

probation is required when any part of the sentence is suspended comes from

section 907.1(4), which defines “suspended sentence” to mean “a sentencing

option whereby the court pronounces judgment and imposes a sentence and then

3 Section 907.7(1) and (2) then sets the term of probation as two to five years for

felonies and one to two years for misdemeanors. 7

suspends execution of the sentence subject to the defendant’s compliance with

conditions set by the court as a requirement of the suspended sentence.”

(Emphasis added.) Finally, our case law directs that “if a district court pursues a

sentencing option under section 907.3[,] it must place the defendant on probation

under the form of supervision specified in the statute.” State v. Thomas, 659

N.W.2d 217, 222 (Iowa 2003).

There is no dispute the district court had the authority to suspend any part

of Laue’s sentence, including the fine. But I see nothing in the relevant statutes—

sections 901.5(3) and 907.3(3)—giving the district court the authority to suspend

part of the sentence without also placing Laue on probation. By suspending a

portion of the sentence without putting Laue on probation, there is no future event

that could trigger Laue’s obligation to pay the suspended fine. Because there is

no circumstance under which Laue could become obligated to pay the fine, the

fine is suspended in name only. See State v. Grey, 514 N.W.2d 78, 79 (Iowa 1994)

(“Suspending a fine and imposing no fine are not equivalent: a suspended

sentence is subject to later being executed if the defendant fails to comply with

conditions set by the court.”). In reality, the fine was waived—an outcome not

permitted by our sentencing statutes. See Iowa Code § 903.1(2) (“There shall be

a fine of at least eight hundred fifty-five dollars but not to exceed eight thousand

five hundred forty dollars.” (emphasis added)); State v. Carr, No. 12-2164, 2014

WL 667686, at *2 (Iowa Ct. App. Feb. 19, 2014) (“The mandatory minimum

punishment for an aggravated misdemeanor is a fine of at least $625 [now $855].”).

I recognize that it is a widespread and common practice for district courts

to do what was done here by suspending the fine of a defendant sent to prison 8

without placing the defendant on probation. I also recognize that the practice

makes practical sense. There seems to be little purpose served by imposing an

unsuspended financial obligation on an incarcerated defendant, as the fine would

be unlikely to provide any further penological purpose and frequently only serve to

pile some unpayable debt on an incarcerated defendant. By the same token,

suspending the fine and placing the defendant on probation also seems to serve

little purpose, as the typical purposes of supervision are rendered moot by the

defendant’s incarceration—not to mention there would likely be little deterrent

effect of the suspended sentence when violation of probation would simply trigger

a repayment obligation rather than incarceration, which is already being served.

So, when a defendant is sent to prison, suspending the fine without probation may

be more attractive to district courts than imposing the fine without suspending it or

suspending the fine with probation. But that is not one of the options the legislature

has provided to our courts. Our courts are not at liberty to ignore the language

chosen by our legislature and replace it with our ideas of justice and equality. See

Young v. O’Keefe, 82 N.W.2d 111, 115 (Iowa 1957) (“We cannot however

substitute our own ideas of justice and equality for the language used by the

legislature. Our duty is jealously to guard the rules and processes of the law and

not to invade the province of the legislature—to ‘hew to the line, let the chips fall

where they may.’”). Here, the statutory language is clear, and it provides no option

of suspending part of a sentence without conditioning such suspension on

imposition of probation.

Circling back to the specific issue here, due to the discrepancy between the

oral pronouncement of sentence and the written sentencing order that followed, 9

the oral pronouncement controls. See Hess, 533 N.W.2d at 528. However,

because the oral pronouncement purported to suspend the fine without also

placing Laue on probation, the sentence imposed was not authorized by statute.

The sentence is therefore illegal and void, and we are required to vacate it. See

State v. Woody, 613 N.W2d 215, 217 (Iowa 2000) (“An illegal sentence is one that

is not permitted by statute. . . . Because an illegal sentence is void, it can be

corrected at any time.”); Hess, 533 N.W.2d at 527 (“When a court imposes a

sentence which statutory law does not permit, the sentence is illegal, and such a

sentence is void and we will vacate it.”). As a result, the remedy here cannot be

to remand for issuance of a nunc pro tunc order to make the written sentencing

order consistent with the oral pronouncement because the oral pronouncement

was that of an illegal sentence. Instead, we are required to vacate the sentence

as illegal and remand for resentencing.

For these reasons, I concur in the part of the majority opinion concluding

that the oral pronouncement of judgment controls, but I dissent from the decision

to remand with the direction to issue an order nunc pro tunc making the written

sentencing order consistent with the oral pronouncement of sentence. Since the

oral pronouncement imposed an illegal sentence, I would vacate the sentence and

remand for resentencing.