Opinion
22-2057
03-27-2024
STATE OF IOWA, Plaintiff-Appellee, v. ROYAL RIO JONES, Defendant-Appellant
Mark C. Meyer, Cedar Rapids, for appellant. Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.
Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde, Judge.
A criminal defendant challenges his sentence and waiver of an updated presentence investigation report. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.
Considered by Greer, P.J., and Ahlers and Buller, JJ. Chicchelly, J., takes no part.
BULLER, JUDGE.
Royal Rio Jones appeals following a consolidated sentencing hearing. One dispositional order relates to his guilty plea and sentence for possession of a firearm by a felon, a class "D" felony in violation of Iowa Code section 724.26(1) (2022). The other order revoked a deferred judgment and imposed sentence for going armed with intent, a class "D" felony in violation of Iowa Code section 708.8 (2020). Jones alleges two errors on appeal, claiming the district court should not have accepted his invitation to sentence him without a new pre-sentence investigation (PSI) report and asserting the district court considered an improper sentencing factor. We affirm, concluding Jones invited any alleged error related to the PSI and the district court did not abuse its discretion at sentencing.
I. Background Facts and Proceedings
In 2021, Jones received a deferred judgment and was placed on probation for robbery in the second degree and going armed with intent. The next year, Cedar Rapids police responded to a call reporting "shots fired" and eventually found Jones and compatriots fleeing the scene. Jones was wearing a black ski mask in eighty-degree weather and fled despite police commands to stop.
During this interaction, police saw movements by Jones indicating he was carrying a firearm. Officers found a discarded "ghost gun" along Jones's path after apprehending him. After police arrested Jones, the Linn County Attorney charged him by trial information with four offenses.
Jones initially pled not guilty, and the matter mistried for reasons immaterial to this appeal. About two weeks later, Jones pled guilty in writing only on the charge of felon in possession. As part of a plea agreement, the State dismissed the other charges. Jones consented to revocation of his deferred judgment for going armed with intent, but the robbery judgment remained deferred. The plea agreement was for open sentencing, except that sentences from the two cases would be concurrent with each other.
The PSI was incomplete as of the date set for sentencing, leading to a reset hearing about three weeks later. But the PSI was still unfinished on that date, prompting the following colloquy:
THE COURT: . . . With regard to [the felon-in-possession case], counsel has brought it to the Court's attention that the file does not have a new [PSI] report. The parties further indicated that both parties are comfortable proceeding with these two matters and ask the Court to rely on the earlier [PSI] report that was prepared in [the robbery and going-armed case].
Is that accurate, [County Attorney]?
[COUNTY ATTORNEY]: Yes, Your Honor.
THE COURT: Is that accurate, [defense counsel]?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: And Mr. Jones, at the risk of being a little redundant here, are you comfortable proceeding with today's dispositional hearing and sentencing hearing without having-you have the right to have that [PSI] report updated. Are you comfortable-are you willing to waive that right and proceed to sentencing?
[JONES]: Yes, I am.
THE COURT: Has anyone threatened you in any way or promised you anything to get you to waive your right to an updated [PSI] report?
[JONES]: No.
THE COURT: Okay. Very good. Under these circumstances, the Court is mindful of the fact that Mr. Jones is currently in custody and that the Department [of Correctional Services] has been invited at least twice to participate by updating the [PSI] report and has declined the Court's invitation, also known as a court order, to do so. And we will not wait any further, but I will direct that the Department will update that report after today's proceedings.
The court sentenced Jones to prison on the felon-in-possession charge and revoked his deferred judgment and probation for the armed-with-intent charge in his earlier case. Consistent with the plea agreement, the felon-in-possession sentence was ordered concurrent to the armed-with-intent sentence.
After imposing sentence, the district court made the following statement:
Mr. Jones, it is my sincere hope that removing you physically from this community for a period of time will allow you to have a timeout and then when you are paroled-you're not going to be away very long-when you are paroled, that you will take some steps, if it is going to help you in your rehabilitation, to physically locate yourself outside of this community. If this community is part of what was contributing to your contact with the criminal justice system, take this opportunity to get somewhere else. But one-the most important thing that you can change is what's between your ears, the way that you think, the way that you process, and know that there are ways to solve problems other than carrying a loaded gun. I realize that there are activities in this community that I will never be part of and I am thankful for that. But you can make a determination that you're not going to be part of that. And if it takes relocating, again, outside of this community to keep yourself safe and put yourself in a position where you can use a different mindset and not think that that's part of who you are is somebody who's packing a gun all the time, you need to do that. Because if you don't, you're going to end up going back to prison or you're going to end up dead. And I don't think anybody in your family, any of the people who care about you, want to see that happen, either of those options obviously.
Jones appeals.
II. Good Cause/Waiver
The General Assembly has limited our jurisdiction of guilty-plea appeals, other than for class "A" felonies, to cases in which "the defendant establishes good cause." Iowa Code § 814.6(1)(a)(3) (2022). The supreme court has held that discretionary-sentencing challenges supply "good cause." State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020).
After the proof briefs in this case were filed, the supreme court decided State v. Rutherford, holding that a criminal defendant appealing a guilty plea may raise additional issues once they get their foot in the door with a discretionary sentence that establishes "good cause." 997 N.W.2d 142, 146 (Iowa 2023). We are bound by this holding and cannot dismiss the PSI-waiver portion of the appeal. But we must still consider whether any other procedural bar limits our "authority" to consider this claim. See id.
We conclude Jones did not preserve error on his PSI-waiver challenge. Historically, the challenge he advances on appeal might have been pursued as an allegation his attorney rendered ineffective assistance. Cf. State v. Hopkins, 860 N.W.2d 550, 557 (Iowa 2015) (preserving for postconviction relief a defendant's complaint about a PSI that was not updated for re-sentencing). But that door closed when the General Assembly eliminated our authority to decide ineffective-assistance challenges on direct appeal. See Iowa Code § 814.7. Given this limitation, Jones alleges his challenge is an illegal-sentence claim. But his challenge is to the PSI waiver, not the sentence itself or the district court's sentencing power. See State v. Gordon, 921 N.W.2d 19, 23 (Iowa 2018) (noting "distinctions between claiming the sentence is intrinsically unconstitutional and claiming errors in the proceedings prior to imposition of sentence" compared with applying normal error preservation rules because the defendant's "claim does not involve the inherent power of the court to sentence him for his crime"). Jones cites no authority finding such a challenge can bypass the normal rules of error preservation, and we are aware of none.
Jones asked to be sentenced without the benefit of an updated PSI. Not only did he fail to preserve error, he complains the district court did the very thing he asked it to do. C.f., e.g., Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991) ("Applicant cannot deliberately act so as to invite error and then object because the court has accepted the invitation."). As our court has observed before, requesting to be sentenced without the benefit of a PSI is a "self-inflicted wound," and one that is no basis for reversal. See State v. Wink, No. 21-1452, 2022 WL 1234172, at *1-2 (Iowa Ct. App. Apr. 7, 2022) (citation omitted). We cannot reach the PSI claim and conclude Jones is owed no relief on this issue.
III. Standard of Review
Our review of a sentence within statutory limits is for an abuse of discretion. E.g., Gordon, 921 N.W.2d at 24. But "if a court in determining a sentence uses any improper consideration, resentencing of the defendant is required even if it was merely a secondary consideration." Damme, 944 N.W.2d at 106. (cleaned up). The defendant bears the burden to "affirmatively demonstrat[e] the court relied on an improper factor." Id.
IV. Discussion
Jones argues the district court considered an improper factor when it observed he may be paroled before "very long." Considering parole at sentencing is improper when a sentencing court imposes consecutive sentences to thwart the potential for early parole. State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977). But a court explaining "how parole works" by noting the "reality" that offenders seldom serve full indeterminate sentences is not error. See State v. Benedict, No. 14-1496, 2015 WL 3876796, at *2 (Iowa Ct. App. June 24, 2015) (citing and applying State v. Vanover, 559 N.W.2d 618, 635 (Iowa 1997)).
This case is much closer to Benedict and Vanover than to Remmers. There is no credible suggestion in this record that the district court considered parole as part of a plan to thwart early release. Instead, the court's comments hoping for rehabilitation and observing parole may not be too far in the future reflect the actuality of Iowa's indeterminate sentencing system. Benedict, 2015 WL 3876796, at *2; see also State v. Jason, No. 14-1162, 2015 WL 6510334, at *12 (Iowa Ct. App. Oct. 28, 2015) (per curiam) ("Sentencing courts are not prohibited from referring to the possible effects of parole practices on the time that a defendant will actually serve."). We conclude Jones failed to carry his burden to affirmatively demonstrate the court relied on an improper factor.
AFFIRMED.