STATE OF IOWA, Plaintiff - Appellee, vs. NORMAN WATERS JR., Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-848 / 08-0854
Filed November 13, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NORMAN WATERS JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick
and Mark J. Smith, Judges.
Norman Waters Jr. appeals from his conviction, judgment, and sentence
following pleas of guilty for a drug tax stamp violation and driving under
suspension.
CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART
AND VACATED IN PART AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly G. Cunningham,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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DOYLE, J.
Norman Waters Jr. appeals from his conviction, judgment, and sentence
following pleas of guilty for a drug tax stamp violation and driving under
suspension. He claims the district court abused its discretion in considering only
one factor in its sentencing decision and the sentence imposed for driving while
suspended was illegal and void. Upon our review, we affirm his convictions,
affirm in part and vacate in part his sentence, and remand for resentencing.
I. Background Facts and Proceedings.
According to the Minutes of Testimony, on September 22, 2007,
Davenport police officers stopped a vehicle registered to Shebra Waters, who
had an outstanding arrest warrant. The officers were unsure whether the driver
was male or female. They noticed the driver had a ponytail, consistent with that
of a female.
After pulling the car over, they discovered Defendant Norman
Waters was driving and that he also had an active warrant for his arrest. He was
arrested and then processed at the Scott County Jail.
When Waters was
searched at the jail, a bag of marijuana, weighing 87.9 grams, was found stuffed
in his groin area inside his underwear. It is no surprise that a drug tax stamp was
not affixed to the bag.
On October 10, 2007, Waters was charged by trial information with
possession with intent to deliver marijuana (Count I), a drug tax stamp violation
(Count II), and driving under suspension (Count III). Pursuant to a written plea
agreement, Waters plead guilty to a class “D” felony drug tax stamp violation and
a serious misdemeanor charge of driving under suspension. The charge for
felony possession with intent to deliver marijuana was dismissed, and the State
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did not seek to enhance Waters’s sentence on his third felony drug conviction.
Waters plead guilty in open court on March 26, 2008. He filed no motion in arrest
of judgment. On May 8, 2008, Waters was sentenced to an indeterminate term
of incarceration not to exceed five years on the drug tax stamp charge, and to an
indeterminate term of incarceration not to exceed one year on the driving under
suspension charge. The court ordered the sentences to run concurrently.
Waters appeals. He argues the court based its sentencing decision on
only one factor, Waters’s criminal history.
He also argues the indeterminate
sentence imposed for the driving under suspension charge was illegal and void.
II. Scope and Standards of Review.
We review sentencing challenges for errors at law. Iowa R. App. P. 6.4;
State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003).
A sentence will not be
reversed unless there has been an abuse of discretion or a defect in the
sentencing procedure. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “An
abuse of discretion is found when the court exercises its discretion on grounds
clearly untenable or to an extent clearly unreasonable.” State v. Evans, 672
N.W.2d 328, 331 (Iowa 2003). Sentencing decisions of the district court are
cloaked with a strong presumption in their favor. State v. Thomas, 547 N.W.2d
223, 225 (Iowa 1996). Challenges to the legality of a sentence are reviewed for
errors at law. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).
III. Merits.
A. Sentencing Factors.
When a sentence is not mandatory, the district court must exercise its
discretion in determining what sentence to impose. Thomas, 547 N.W.2d at 225.
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The sentencing court may not base its decision on one factor. State v. DeWitt,
426 N.W.2d 678, 680 (Iowa Ct. App. 1988). Iowa Rule of Criminal Procedure
2.23(3)(d) requires a sentencing court to demonstrate its exercise of discretion by
stating “on the record its reason for selecting the particular sentence.” Failure to
state on the record the reasons for the sentence imposed requires the sentence
be vacated and the case remanded for amplification of the record and
resentencing.
State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980); State v.
Freeman, 404 N.W.2d 188, 191 (Iowa Ct. App. 1987). While the reasons need
not be detailed, the court must provide enough explanation to allow appellate
review of the district court’s discretion. State v. Jacobs, 607 N.W.2d 679, 690
(Iowa 2000). The sentencing court, however, is generally not required to give its
reasons for rejecting particular sentencing options. Thomas, 547 N.W.2d at 225.
In considering sentencing options, the court is to determine, in its discretion,
which of the authorized sentences will provide both the maximum opportunity for
the rehabilitation of the defendant and for the protection of the community from
further offenses by the defendant and others. Iowa Code § 901.5 (2007); see
also State v. Hildebrand, 280 N.W.2d 393, 395 (Iowa 1979).
At the sentencing hearing, Waters requested probation based on his
favorable family relationships, work history, and treatment for substance abuse.
The State requested the maximum terms of incarceration on each count, making
reference to Waters’s criminal history.
Waters contends the district court
impermissibly based its denial of probation on only one essential factor—
Waters’s criminal history.
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Indeed, the sentencing court took into consideration Waters’s sixteen
convictions since 2000. However, a thorough review of the court’s sentencing
comments reveals the court also took note of Waters’s drug treatment and
claimed recovery from drug use, the need to protect the community,
circumstances surrounding Waters’s arrest, and Waters’s propensities and
chances of reform.
There is no basis for Waters’s assertion the court only
considered one factor in sentencing him. Accordingly the court did not abuse its
discretion.
B. Void Sentence.
The district court sentenced Waters to an indeterminate term of
incarceration not to exceed one year for the driving under suspension conviction,
a serious misdemeanor. Iowa Code § 321J.21. Waters argues, and the State
agrees, that the district court imposed an illegal sentence because Iowa’s
indeterminate sentencing statute does not apply to serious misdemeanors. State
v. Englebrecht, 316 N.W.2d 415, 417 (Iowa Ct. App. 1981).
We agree.
Accordingly, this matter should be remanded for the limited purpose of
resentencing on the driving under suspension conviction to establish a fixed
period of confinement under Iowa Code section 903.1.
IV. Conclusion.
Based upon the foregoing, we affirm Waters’s sentence for the drug tax
stamp violation, vacate the driving under suspension sentence as void, and
remand for resentencing on the driving under suspension conviction.
CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART AND
VACATED IN PART AND REMANDED FOR RESENTENCING.
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