Opinion
No. 6-029 / 05-0925
Filed February 15, 2006
Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.
Adam Scarlett appeals from his sentence following his guilty plea for Serious Assault. SENTENCE VACATED AND REMANDED.
Daniel J. Gonnerman of Gonnerman, Owen Stonehocker, LLP, Ames, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Stephen Holmes, County Attorney, and Shawn Smith, Assistant County Attorney, for appellee-State.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Adam Scarlett appeals from his sentence following his guilty plea for serious assault. We reverse and remand for resentencing.
I. Background Facts and Proceedings.
On the evening of February 20, 2005, Adam Scarlett was involved in an altercation at a dorm on the campus of Iowa State University. He was initially charged with aggravated assault, but later pled guilty to a charge of serious assault, in violation of Iowa Code section 708.2(2) (2005). In his written guilty plea, Scarlett made the following statement:
I have read the Minutes of Testimony [and] [t]hey are, in all relevant aspects, true and correct. I have read the elements in paragraph 7 and I admit each of them. I did commit the offense I am charged with. I did the following: I assaulted another causing bodily injury on or about February 20, 2005, in Story County, Iowa
Scarlett acknowledged in paragraph seven of the guilty plea his awareness that he could be convicted of the offense if the State proved he committed "an act which was intended to cause pain or injury to another, causing bodily injury."
(emphasis supplied).
The minutes of testimony attached to the trial information contained conflicting witness accounts of the altercation. Three witnesses each claimed that Scarlett brandished a knife in a threatening manner either during or shortly after the altercation. Scarlett's voluntary narrative to police denied that he displayed a knife, and instead claimed he had remarked to one of these students during a heated verbal exchange: "Assault? If I really wanted to assault you I'd pull the knife I have in my pocket."
The district court accepted Scarlett's guilty plea to the serious assault charge, and on Scarlett's approval, proceeded immediately to sentencing. The State recommended incarceration for one year — with all but five days suspended, probation, and the minimum fine of $250. Scarlett requested a deferred judgment along with the probationary terms advanced by the State. In the colloquy with Scarlett immediately prior to rendering sentence, the district court made the following statement.
Mr. Scarlett, when I read through this file, I just shake my head. What you did was so incredibly irresponsible; it is hard to comprehend. You put yourself in a position where you could have easily injured somebody severely. You could have been injured severely. When you pull a weapon you don't know what the reaction of the other person is going to be and you don't know if they are armed. You don't know what they will do in response to what you did. Even putting that aside, you never have the right to assault someone else; especially in the way you committed this offense.
The district court imposed a sentence consistent with the State's recommendations.
Scarlett now contends on appeal that the above-quoted colloquy establishes that the district court relied on an improper sentencing consideration: viz., the allegations in the minutes of testimony tending to prove Scarlett wielded a knife during the altercation. Scarlett submits the evidence that he displayed a knife "is germane to a charge, or at least to an element thereof, which was abandoned by the State" in the plea agreement. He contends the sentencing court's consideration of such improper matters requires vacation of his sentence and a remand for resentencing.
II. Scope and Standard of Review.
"Our review is for correction of errors at law." State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure such as the trial court's consideration of impermissible factors." Id. III. Discussion.
The State claims at the outset that "[t]he district court did not consider, except in the hypothetical, that [Scarlett] used or displayed a knife during the assault." We believe this claim misreads the import of the district court's statement during the sentencing colloquy. While it is true that the statement included sage observations, we believe it clearly disclosed that the court assumed as fact the allegation that Scarlett displayed a knife when he committed the offense that formed the factual basis for the guilty plea. The sentencing court also clearly considered the knife-wielding in the assessment of Scarlett's culpability when the court stated: "You never have the right to assault someone else; especially in the way you committed this offense" (emphasis supplied). Having decided that the district court did consider Scarlett's use of a knife during the assault, we must decide whether such consideration constituted reversible error.
A. Attending Circumstance of the Assault.
Our supreme court has instructed sentencing courts to "weigh and consider all pertinent matters in determining a proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances [for] reform." State v. Cooley, 587 N.W.2d 752, 754-55 (Iowa 1998). Sentencing courts are further cautioned that "[w]here portions of the minutes [of testimony] are not necessary to establish a factual basis for a plea, they are deemed denied by the defendant and are otherwise unproved and a sentencing court cannot consider or rely on them." Gonzalez, 582 N.W.2d at 517 (citation omitted). In State v. Black, 324 N.W.2d 313, 316 (Iowa 1982), our supreme court explained that this prohibition stems from a concern that "[n]o evidence is before the court that shows the alleged facts contained in these portions of the minutes [of testimony] are valid."
The State contends the minutes of testimony alleging Scarlett wielded a knife should be characterized as a mere circumstance attendant to the assault that was appropriately considered by the sentencing court. However, we refuse to give such a broad definition to the concept of "attending circumstances." In Black, the defendant pled guilty to a charge of indecent exposure. Black, 324 N.W.2d at 314. Portions of the minutes of testimony suggested that the defendant had gained entry into a woman's home by breaking and entering. Id. In that case, the State similarly urged the court to characterize Black's alleged illegal entry as an attending circumstance of the indecent exposure. Id. at 316. Our supreme court, however, refused to view as attending circumstances facts going exclusively to a charge that was not proven or admitted to. Id. Despite the fact that the alleged illegal entry could be viewed as directly connected to the admitted indecent exposure, the court in Black vacated the sentence, stating:
[w]e find that the sentencing court considered the alleged illegal entry into the victim's home although the entry had not been proved nor, since illegal entry is not an element of the crime of indecent exposure, had it been admitted to in Black's guilty plea.
Black, 324 N.W.2d at 316.
To accept the State's conception of "attending circumstances" forwarded both here and in Black would, in our view, effectively eviscerate the prohibition against the sentencing court's consideration of unproven, unadmitted conduct not necessary to establish a factual basis for a guilty plea. If we were to adopt the State's position, any criminal conduct supporting an uncharged crime would be appropriately considered by the sentencing court because the conduct occurred contemporaneously with the conduct admitted in the guilty plea. We conclude our supreme court's holding in Black requires us to reject the State's argument.
We believe a comparison of our case to the facts in Black lends ample support for our conclusion that, by considering Scarlett's display of the knife in selecting the appropriate sentence, the district court considered an uncharged, unproven offense rather than a mere attending circumstance of the assault. The offense to which Scarlett pled guilty did not require a showing that Scarlett wielded a knife. Rather, the factual basis required for a charge of serious assault was met upon a showing or an admission that an assault was committed by Scarlett which resulted in bodily injury or mental illness to another person. Iowa Code § 708.2(2). We conclude the evidence that Scarlett wielded a knife would have been relevant to the elements of aggravated assault, which is defined as an assault carried out by a person "who uses or displays a dangerous weapon in connection with the assault." Id. B. Admitted Criminal Conduct.
Because Scarlett did not plead guilty to aggravated assault, and because we conclude evidence that he displayed a knife was relevant for sentencing purposes only to prove an unprosecuted charge, we must now address whether Scarlett admitted he wielded a knife in connection with the assault. The State contends that because Scarlett's guilty plea admitted the truth "in all relevant aspects" of the minutes of testimony, Scarlett has also admitted for sentencing purposes the truth of knife-wielding allegations therein. We disagree.
After reviewing Scarlett's written guilty plea in its entirety, we conclude Scarlett intended only to admit those portions of the minutes of testimony which bore directly on the charge of serious assault. It is instructive that the written plea defined "assault" in accord with Iowa Code section 708.1(1), as "an act which was intended to cause pain or injury to another." Scarlett never explicitly admitted to conduct that would fit section 708.1(3)'s definition of assault, which proscribes any threatening display of a dangerous weapon. Indeed, his own voluntary statement impliedly denied that he ever wielded a knife, instead admitting only that he told one of the victims "[i]f I really wanted to assault you I'd pull the knife I have in my pocket." Scarlett only explicitly admitted to having committed an assault resulting in bodily injury. Thus, we conclude Scarlett didn't admit for sentencing purposes that he displayed, or used a knife in a threatening manner toward another person during the commission of the serious assault.
IV. Conclusion.
Because we conclude the allegation that Scarlett used a knife during the incident that formed the factual basis for his guilty plea (1) was relevant to the proof of an unprosecuted offense, rather than the charge Scarlett pled guilty to, and (2) was neither explicitly or implicitly admitted by Scarlett in his written guilty plea, and (3) was not otherwise sufficiently proved in the sentencing record, we must conclude the sentencing court's consideration of that matter was improper. Because we are unable to ascertain the influence this improper matter had on the sentencing court's exercise of discretion, we vacate the sentence, and remand for resentencing. Black, 324 N.W.2d at 316.