Opinion
No. 4-449 / 04-0061.
August 26, 2004.
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
James Michael Williams appeals from his conviction and sentence for the crimes of going armed with intent and assault by use or display of a dangerous weapon. SENTENCES VACATED AND REMANDED FOR RESENTENCING ON COUNT I.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, William Davis, County Attorney, and Robert Cusack and Robert Weinberg, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
James Michael Williams appeals from his conviction and sentence for the crimes of going armed with intent in violation of Iowa Code section 708.8 (2003) and assault by use or display of a dangerous weapon in violation of Iowa Code sections 708.1(3) and 708.2(3).
I. Background Facts Proceedings
Williams was originally charged in a three-count trial information with going armed with intent (Count I), assault while participating in a felony (Count II), and assault by use or display of a dangerous weapon (Count III). Williams was also prosecuted as an habitual offender.
As a result of a plea agreement, Williams pled guilty to Count I and Count III. In exchange for Williams's plea, the State dismissed Count II and waived their habitual offender claims. The State also agreed to recommend that any resulting sentences of incarceration be served concurrently. The plea agreement was subject to the court's approval.
The court accepted Williams's guilty pleas, and the matter proceeded to sentencing. At the sentencing hearing, the State recommended concurrent terms of confinement on each count. Williams requested that any sentence of confinement be suspended. During the sentencing hearing, the court made the following statements:
Since you've discharged your last sentence, the robbery in 1998, which means typically I wouldn't expect to see anything on your record, I count — this is since December, so we're starting early in 1999, I count one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three incidents in which you were arrested. Some of those things you were convicted of, some of those things you weren't convicted of, but I would take serious issue with your statement that you've been trying very hard, you know, to not show your outright contempt for the law, if anything, but that you've attempted very hard to engage in law-abiding behavior since you were discharged in 1999. I mean, I just don't agree with that assessment.
The trial court followed the State's recommendation and sentenced Williams to a five-year term of confinement on Count I and a concurrent two-year term on Count III.
On appeal, Williams raises the following issues:
I. THE DISTRICT COURT ERRED BY IMPOSING JUDGMENT ON THE CHARGE OF ASSAULT BY USE OR DISPLAY OF A DANGEROUS WEAPON. [Count III]
II. THE DISTRICT COURT ERRED BY CONSIDERING IMPROPER FACTORS IN SENTENCING THE DEFENDANT.
II. Standard of Review
We review sentencing challenges for errors at law. State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). "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 trial court consideration of impermissible factors." Id. (citation omitted). "When a court imposes a sentence which statutory law does not permit, the sentence is illegal, and such a sentence is void and we will vacate it." State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995).
III. Improper Sentencing Factors
We first address Williams's claims concerning the sentencing judge's consideration of improper sentencing factors. As noted earlier, Williams challenges the legality of his sentences on both counts, citing the sentencing judge's reliance on improper sentencing considerations, specifically unproven or unprosecuted charges.
"It is a well-established rule that a sentencing court may not rely upon additional, unproven, and unprosecuted charges unless the defendant admits to the charges or there are facts presented to show the defendant committed the offenses." State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). We will remand the case for resentencing if the court improperly considered unprosecuted or unproven additional charges. Id. The fact the court was merely aware of unproven charges is not sufficient to overcome the presumption that it properly exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990). The defendant must affirmatively show that the court relied upon the unproven offenses. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001); State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998).
The above-quoted statements by the sentencing judge were in response to Williams's arguments in support of a suspended sentence. When the judge's statements are read in that context, we believe that they are more than a benign acknowledgement of Williams's numerous arrests since he was last released from prison. We interpret the judge's statements as an express reason for rejecting Williams's request for a suspended sentence.
Williams has accordingly met his burden to affirmatively show that the sentencing judge relied on improper sentencing factors in rejecting his request for a suspended sentence. We therefore vacate the sentence imposed on both Counts I and III and remand for resentencing on Count I. Because we vacate the sentence on Count III for different reasons hereinafter cited, we do not remand for resentencing on that count.
IV. Legality of Williams's Sentence on Count III
Iowa Code section 708.2(3) provides:
A person who commits an assault, as defined in section 708.1, and uses or displays a dangerous weapon in connection with the assault, is guilty of an aggravated misdemeanor. This subsection does not apply if section 708.6 or 708.8 applies.
In State v. Ray, 516 N.W.2d 863, 866 (Iowa 1994), the court held that punishment under section 708.2(3) is inapplicable where a person is convicted of going armed with intent under the same facts. Williams argues and the State concedes no judgment should have therefore been entered on Count III and the resulting sentence must be vacated.
The State nevertheless contends that we should remand with instructions for the trial court to enter a judgment convicting and sentencing Williams for simple assault under 708.2(4). The State argues this disposition is consistent with Ray's further holding that the penalty restriction in 708.2(3) does not preclude a conviction and sentence for the lesser-included offense of simple assault. We disagree.
In Ray, the jury returned guilty verdicts for both going armed with intent and simple assault. Id. at 865. Here, there is no verdict or guilty plea upon which a predicate judgment of conviction for simple assault could be entered. Williams does not cite nor do we find any controlling Iowa authority allowing a sentence to be imposed for a lesser-included offense based on a guilty plea to a greater offense. We therefore decline to remand for resentencing as proposed by the State.
Lastly, we note the State has limited its remand request to sentencing Williams on the lesser-included offense of simple assault. We make no decision nor do we intimate whether the State should be allowed to reinstate the original charges against Williams. See, e.g., State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000); State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996).
In summary, we vacate the sentences imposed on both Counts I and III and remand for resentencing on Count I only.
SENTENCES VACATED AND REMANDED FOR RESENTENCING ON COUNT I.
Sackett, C.J. concurs; Miller, J., concurs in part and dissents in part.
I concur in part and respectfully dissent in part.
The aggravated misdemeanor charge under Count III, assault by use or display of a dangerous weapon, charges the lesser included offense of simple misdemeanor assault as well. See State v. English, 242 Iowa 248, 252, 46 N.W.2d 13, 15 (1951) ("It is elemental that an information charges not only the major offense, but any lesser offenses necessarily included therein."). Williams makes no claim that his plea of guilty to the charge of assault by use or display of a dangerous weapon was not made voluntarily and intelligently, or that it lacked a factual basis. That plea of guilty thus necessarily included a legally adequate plea of guilty to the lesser included offense of assault under section 708.2(5) (formerly section 708.2(4)). See Kennedy v. State, 786 P.2d 928, 930 (Alaska Ct.App. 1990) ("A knowing and voluntary plea [of guilty] to a greater offense necessarily includes a knowing and voluntary plea [of guilty] to all lesser-included offenses.").
I agree with the majority that Williams's sentence on his conviction under Count I must be vacated and the case remanded for resentencing on that conviction. I also agree that Williams's sentence under Count III must be vacated for the reasons stated by the majority. However, section 708.2(3)'s preclusion of punishment for both going armed with intent and assault by use or display of a dangerous weapon does not preclude punishment for both going armed with intent and simple misdemeanor assault. State v. Ray, 516 N.W.2d 863, 867 (Iowa 1994). Because Williams's plea of guilty under Count III included a plea of guilty to simple misdemeanor assault, I would vacate his sentence under that count and remand for entry of a judgment of conviction for simple misdemeanor assault and an appropriate sentence under that count.