State of Iowa v. Neil Darrell Clark

• Court: Court of Appeals of Iowa
• Decided: October 25, 2023
• Docket: 22-1575
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1575 Filed October 25, 2023

STATE OF IOWA, Plaintiff-Appellee,

vs.

NEIL DARRELL CLARK, Defendant-Appellant. ________________________________________________________________

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

Judge.

Neil Clark appeals his sentences after pleading guilty to attempt to commit

murder and two counts of willful injury causing serious injury. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

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

Ferrentino, Assistant Attorneys General, for appellee.

Considered by Tabor, P.J., and Badding and Chicchelly, JJ. 2

CHICCHELLY, Judge.

Neil Clark appeals his sentences after pleading guilty to attempt to commit

murder and two counts of willful injury causing serious injury. The court sentenced

him to serve twenty-five years in prison for attempt to commit murder and ten years

in prison on each conviction for willful injury, ordering the sentences to run

consecutively. On appeal, Clark contends the sentencing court relied on improper

factors in imposing consecutive sentences. Because Clark challenges his

sentences rather than his pleas, he has established good cause to pursue this

direct appeal as a matter of right. See State v. Boldon, 954 N.W.2d 62, 69 (Iowa

2021). But Clark fails to show the court abused its sentencing discretion, so we

affirm his sentences.

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

v. Wilbourn, 974 N.W.2d 58, 65 (Iowa 2022). For sentences falling within statutory

limits, as here, we will reverse only if the sentencing court abused its discretion.

See id. An abuse of discretion occurs when the court exercises its discretion “on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Id.

(citation omitted).

Clark first contends the written sentencing order shows the court considered

an improper factor in sentencing him. He cites the section ordering him to serve

consecutive sentences and stating the reasons for doing so. The court checked

the boxes next two reasons: “the separate and serious nature of the offenses” and

“in order to carry out the plea agreement.” Because the plea agreement was silent

on whether the sentences would run concurrently or consecutively, Clark claims

the court abused its discretion by imposing consecutive sentences on that basis. 3

The sentencing court must state on the record the reasons for the sentence

imposed. Iowa R. of Crim. P. 2.23(1)(f). Doing so “ensures defendants are well

aware of the consequences of their criminal actions” and “affords our appellate

courts the opportunity to review the discretion of the sentencing court.” State v.

Thompson, 856 N.W.2d 915, 919 (Iowa 2014). “The district court can satisfy this

requirement by orally stating the reasons on the record or placing the reasons in

the written sentencing order.” Id.

Although the written sentencing order has a check next to “in order to carry

out the plea agreement” as a reason for imposing consecutive sentences, the State

asserts the check was likely a scrivener’s error. During the sentencing hearing,

the court never mentioned the plea agreement when explaining why Clark’s

sentences would run consecutively. The court cited information contained in the

presentence investigation report, the nature of the crime, and Clark’s age, criminal

record, family, and “other dynamics.” Most importantly, the court emphasized that

“consecutive sentences are necessary in order to protect the public from further

criminal activity and will provide maximum opportunity for [Clark’s] rehabilitation”:

Protection of the public is important. The actions by the defendant were intentional, reckless, indiscriminate, and changed the lives of two people forever. Fortunately, not claiming their lives. His total lack of compassion, total lack of any accountability for the actions at that time, even though the defendant expressed remorse today, is not sufficient to protect the public from further criminal activity. Therefore, the sentences all run consecutive.

Weighing the reasons the court gave at the hearing against written sentencing

order, the record does not support Clark’s claim that the court improperly relied on

the plea agreement in imposing consecutive sentences. 4

Clark next contends the court improperly considered his lack of remorse in

sentencing him. He asserts the record does not disclose a lack of remorse. He

also claims the court impermissibly penalized him for his pre-conviction claim of

innocence or for exercising his right against self-incrimination.

The Iowa Supreme Court has acknowledged that “there is a fine line

between considering a defendant’s lack of remorse and penalizing a defendant for

refusing to plead guilty and insisting on his right to trial.” State v. Knight, 701

N.W.2d 83, 87 (Iowa 2005). The sentencing court cannot consider a not-guilty

plea or exercise of the right to remain silent in finding the defendant lacks remorse.

But it may find the defendant lacks remorse based on any admissible statements

made by the defendant or other evidence admitted at sentencing because “lack of

remorse is highly pertinent to evaluating [a defendant’s] need for rehabilitation and

[the] likelihood of reoffending.” Id.

The record does not show that the court impermissibly relied on Clark’s lack

of remorse in imposing the sentence. Because Clark pled guilty, the court did not

base its finding that Clark lacked remorse on his plea. Clark instead complains

that the court “penalized him for purportedly failing to show remorse at the time of

the event itself,” equating it to a pre-conviction claim of innocence or exercise of

his right against self-incrimination. But the court could infer Clark’s lack of remorse

from his actions at the time of the event. At the sentencing hearing, the prosecutor

played a surveillance video of Clark’s actions.1 The video shows patrons leaving

1 The video is also described in the minutes of testimony, to which the presentence

investigation report refers. Because Clark did not object to the information included in the presentence investigation report, the minutes of evidence is incorporated by reference. See State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 5

a nightclub after a fight on the dance floor. Clark walks past his intended victim

and looks back over his shoulder at him. Reaching across his body with a gun in

his right hand, Clark fired with the gun concealed beneath his left arm. The bullet

struck two bystanders instead of the intended target, and Clark ran from the scene

before fleeing in a vehicle. The court could find Clark lacked remorse based on

the reckless way in which he fired and his failure to help the victims. The court

could also infer that Clark lacked remorse from the colloquy at the plea hearing,

during which Clark downplayed his actions by stating that “there was a shot fired”

rather than accepting responsibility for firing the shot.

Because the district court did not abuse its discretion by considering

improper factors in sentencing Clark to consecutive sentences, we affirm.

AFFIRMED.

2000) (“In determining a defendant’s sentence, a district court is free to consider portions of a presentence investigation report that are not challenged by the defendant.”).