State of Iowa v. Victoria Kay Conrad

• Court: Court of Appeals of Iowa
• Decided: February 5, 2014
• Docket: 3-1251 / 13-0707
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 3-1251 / 13-0707 Filed February 5, 2014

STATE OF IOWA, Plaintiff-Appellee,

vs.

VICTORIA KAY CONRAD, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.

Victoria Conrad appeals her re-sentencing following convictions for forgery

and theft. AFFIRMED.

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

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Brook Jacobsen,

Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Tabor and McDonald, JJ. 2

VOGEL, P.J.

Victoria Conrad appeals her re-sentencing, claiming the district court

judge abused his discretion by failing to recuse himself, as he was the original

sentencing judge. On direct appeal we found the district court considered an

improper factor, vacated the sentence, and remanded for resentencing.

Because, under our case law, the district court judge had no obligation to recuse

himself on resentencing, we affirm.

In 2011, Conrad was charged with two counts of forgery as a habitual

offender, in violation of Iowa Code sections 715A.2, 902.8, and 902.9 (2009), and

theft in the second degree, in violation of Iowa Code sections 714.1(6) and

714.2(2). She pled guilty to all three counts. On March 12, 2012, the district

court sentenced her. On appeal, the sentence was vacated and the case

remanded for resentencing due to the district court’s consideration of an

improper factor. The second sentencing hearing was held on April 19, 2013

before the same judge, who sentenced Conrad to fifteen years on the forgery

convictions, to run consecutively, and a five-year concurrent sentence on the

theft conviction. Conrad requested the judge recuse himself, and the judge

declined to do so, stating: “It was simply a professional decision and we will go

from there.” Conrad appeals.

We review the district court’s decision regarding recusal for an abuse of

discretion. Taylor v. State, 632 N.W.2d 891, 893 (Iowa 2005). The court only

abuses its discretion when it acts on grounds clearly untenable or to an extent

clearly unreasonable. Id. at 894. 3

A judge need only recuse himself when he has a personal bias or

prejudice concerning a party, or personal knowledge of the facts in the

proceeding. Iowa Code § 602.1606(1) (2013). Consideration of an improper

factor at the first sentencing hearing is not enough to require that a different

judge preside on remand. State v. Nichols, 247 N.W.2d 249, 256 (Iowa 1976).

In our remand decision, we “acknowledge[d] the district court’s remarks

may have been intended to simply redirect Conrad to her responsibility as a

parent,” but remanded as an impermissible factor “crept into the proceedings.”

However, there is no evidence the district court judge had a personal bias

against Conrad, and the consideration of an improper factor in the previous

sentencing hearing is not enough to establish such prejudice. See id. Therefore,

Conrad has not met her burden showing grounds for recusal. See State v.

Millsap, 704 N.W.2d 426, 432 (Iowa 2005). Therefore, we affirm the district court

pursuant to Iowa Rule of Appellate Procedure 21.26(1)(a) and (e).

AFFIRMED.