State of Iowa v. Robert Frank Peck

• Court: Court of Appeals of Iowa
• Decided: February 24, 2016
• Docket: 15-0189
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0189 Filed February 24, 2016

STATE OF IOWA, Plaintiff-Appellee,

vs.

ROBERT FRANK PECK, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kevin A. Parker,

District Associate Judge.

The defendant appeals from his sentence for operating a vehicle while

intoxicated, second offense. SENTENCE VACATED AND REMANDED FOR

RESENTENCING.

Colin R. McCormack of Van Cleaf & McCormack Law Firm, LLP, Des

Moines, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.

Considered by Danilson, C.J., and Mullins and McDonald, JJ. 2

DANILSON, Chief Judge.

Robert Peck appeals from his sentence for operating a motor vehicle while

under the influence, second offense. Peck maintains the district court failed to

provide reasons on the record for the sentence imposed, as required by Iowa

Rule of Criminal Procedure 2.23(3)(d), and asks that we remand for

resentencing. We agree the district court abused its discretion. We vacate

Peck’s sentence and remand for resentencing.

On October 15, 2014, Peck entered a guilty plea to a charge of operating

a motor vehicle while under the influence, second offense, in violation of Iowa

Code section 321J.2(2)(b) (2013). On January 5, 2015, he was sentenced to a

period of incarceration not to exceed two years. The sentencing hearing was not

reported. The same day, the district court filed a standard sentencing form. The

form provided, in part, “The following sentence is based on all of the available

SENTENCING CONSIDERATIONS set out in Iowa Code section 907.5.” The

form also provided fourteen factors that the court could check to indicate its

reason for imposing the specific sentence; however, the court did not check any

of the boxes. No reasons were otherwise recited within the sentencing order.

On January 20, 2015, Peck filed a motion with the district court to

reconsider the sentence imposed. Peck also filed a timely appeal on January 30,

2015.

On May 26, 2015, the district court filed an order denying Peck’s motion to

reconsider. In the order, the court stated, “The Defendant’s sentence was

ordered in order to protect the public, for the rehabilitation of the Defendant, and 3

based upon the Defendant’s prior criminal history and in particular his Operating

While Intoxicated convictions.”

Following the district court’s order, the State filed a motion to dismiss

Peck’s appeal as moot. Our supreme court ordered the issue submitted with the

appeal and transferred the case to us.

“When ‘the sentence imposed is within the statutory maximum, we will

only interfere if an abuse of discretion is shown.’” State v. Thacker, 862 N.W.2d

402, 405 (Iowa 2015) (citation omitted). “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.’” Id. (citation omitted).

Here, the district court failed to meet the requirements of Iowa Rule of

Criminal Procedure 2.23(3)(d) by not stating on the record any reasons for the

sentence imposed. In State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014),

our supreme court overruled the line of cases that held a defendant waives the

right to appeal a particular sentence when the defendant waives reporting of the

sentencing hearing and the court fails to put its reasons for the sentence in the

written sentencing order. It held that “if the defendant waives reporting of the

sentencing hearing and the court fails to state its reasons for the sentence in the

written sentencing order, the court has abused its discretion, and we will vacate

the sentence and remand the case for resentencing.” Thompson, 856 N.W.2d at

921. After Thompson, our supreme court recognized the continuing existence of

two exceptions where sentencing reasons need not be stated on the record or

recited in the sentencing order, namely (1) where the least-severe sentence was 4

imposed upon the defendant and (2) where the court simply followed the terms of

the plea agreement and the plea agreement is of record. See Thacker, 862

N.W.2d at 408–09. However, neither exception applies to these facts.1

Accordingly, we vacate Peck’s sentence and remand the case for

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

1 Since the appeal was filed, the district court entered an order denying reconsideration of the sentence and stating the reasons for the sentence, namely, “The Defendant’s sentence was ordered in order to protect the public, for the rehabilitation of the Defendant, and based upon the Defendant’s prior criminal history and in particular his Operating While Intoxicated convictions.” However, we do not find this subsequent order meets the requirements set forth in Thompson and Thacker—although perhaps a nunc pro tunc order or an amended sentencing order would suffice.