State of Iowa v. Donald James Hill

               IN THE SUPREME COURT OF IOWA
                                No. 15–0030

                           Filed April 22, 2016


STATE OF IOWA,

      Appellee,

vs.

DONALD JAMES HILL,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Cheryl E.

Traum, District Associate Judge.



      A   defendant   appeals   the   district   court’s   sentencing   order.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

SENTENCE VACATED AND CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Michael Walton, County Attorney, and Steven A.

Berger, Assistant County Attorney, for appellee.
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WATERMAN, Justice.

      In this appeal, we must decide whether the presumption for

consecutive sentences in Iowa Code section 908.10A (2013) excuses the

district court from the general requirement to state why it imposed a

consecutive sentence and, if not, whether the district court’s stated

reason for this consecutive sentence was adequate. The defendant pled

guilty to failure to comply with sex-offender registry requirements, an

offense he committed while on parole for the underlying sex crime. The

district court imposed a two-year prison sentence consecutive to his

parole revocation and stated, “The reason for the sentence is protection

of the community, seriousness of the crime, and the nature and

circumstances of the offense.” The defendant appealed on grounds that

the sentencing court failed to give reasons for imposing a consecutive

sentence.     The court of appeals affirmed, concluding the statutory

presumption for consecutive sentences obviated any need to give reasons

for imposing the consecutive sentence. The dissenting judge disagreed,

noting section 908.10A allows discretion to impose concurrent or

consecutive sentences, requiring the sentencing court to give reasons for

its choice.   On further review, we hold the district court must give

reasons for imposing a consecutive sentence under section 908.10A and

that the reasons given in this case were insufficient.   Accordingly, we

vacate the decision of the court of appeals, vacate the sentencing order,

and remand the case for resentencing.

      I. Background.

      In 2010, Donald James Hill was convicted of burglary in the third

degree and assault with intent to commit sexual abuse and sentenced to

prison. He was required to register as a sex offender. Hill was paroled

on June 6, 2013. As a condition of his parole, he was required to wear
                                              3

an ankle bracelet with a GPS monitor. On August 4, 2014, Hill reported

to the Iowa Sex Offender Registry that he was residing at Bridge Avenue

in Davenport, Iowa. He was provided with the rules of the registry that

day informing him that he must report any change in address within five

days.    Hill moved to the City of Clinton, Iowa, four days later without

reporting his change in address.               Shortly thereafter, Hill violated his

parole by cutting off his ankle bracelet and traveling to Kentucky to

attempt to meet with his ex-wife. A warrant for his arrest for the parole

violation was issued in Clinton County on August 26. The next day, a

Davenport police officer, Thomas Leonard, learned Hill was incarcerated

in Kentucky. Hill told the Kentucky officials that he resided in Clinton.

On October 27, the State charged Hill with failure to comply with sex-

offender registry requirements in violation of Iowa Code section

692A.111(1). 1         Hill filed a written plea of guilty to that charge on

December 3, which the Scott County District Court accepted on

December 10.

        Hill appeared with counsel at his sentencing hearing in Davenport

on January 2, 2015. The State asked for a two-year prison term for the

sex-offender registry conviction to be served consecutive to Hill’s parole
revocation.         Hill requested a suspended sentence.             The district court

orally imposed the following sentence:

        I am going to sentence you to the two years in prison, and it
        is consecutive to the parole [revocation] in FECR062306,
        which I understand is out of Clinton County. I will give you
        credit for the time served. The reason for the sentence is
        protection of the community, seriousness of the crime, and
        the nature and circumstances of the offense.




        1Hill’s   parole revocation was prosecuted separately in Clinton County.
                                     4

The district court issued this written sentencing order:

      Pursuant to Defendant’s plea of guilty to Count 1, Failure to
      Register as a Sex Offender, First Offense, in violation of
      Section 692A.104, Defendant is sentenced to the custody of
      the Director of the Iowa Department of Adult Corrections for
      a period not to exceed two years, to run consecutive to the
      parole    revocation     in   Clinton    County     in    Case
      No. FECR062306. Credit is given for time served. The Iowa
      Medical and Classification Center, Oakdale, Iowa, is
      designated as the reception center. In addition, defendant is
      ordered to pay court appointed attorney fees not to exceed
      $1,000. Court costs and fines are waived. Defendant was
      advised of his right to appeal. Appeal bond is set at $2,000.

The district court did not refer to the statutory presumption for

consecutive sentences.

      Hill appealed his sentence, contending the district court failed to

provide adequate reasons for the consecutive sentence. We transferred

the case to the court of appeals.    A divided court of appeals affirmed

Hill’s sentence because, “under section 908.10A, the default or

presumptive sentence is a consecutive sentence.       The statute itself is

sufficient reason for imposing consecutive sentences.”        The dissent

concluded “[s]ection 908.10A empowers the district court to impose the

sentences consecutively or concurrently,” which “implicates the court’s

discretion and . . . requires a court to state reasons for imposing

consecutive sentences.”    The dissent found the district court failed to

exercise its discretion.

      We granted Hill’s application for further review.

      II. Standard of Review.

      “We review the district court’s sentence for an abuse of discretion.”

State v. Barnes, 

791 N.W.2d 817, 827

 (Iowa 2010).          A district court

abuses its discretion when it exercises its discretion on grounds clearly

untenable or to an extent clearly unreasonable.      

Id.

 A district court’s
                                        5

“ground or reason is untenable when it is not supported by substantial

evidence or when it is based on an erroneous application of the law.”

State v. Putman, 

848 N.W.2d 1, 8

 (Iowa 2014) (quoting In re Det. of

Stenzel, 

827 N.W.2d 690, 697

 (Iowa 2013)).         “When a sentence is not

mandatory, the district court must exercise its discretion . . . .” State v.

Millsap, 

704 N.W.2d 426, 433

 (Iowa 2005) (quoting State v. Thomas, 

547 N.W.2d 223, 225

 (Iowa 1996)).

         III. Analysis.

         We   must   decide   whether   the   presumption    for   consecutive

sentences      in   Iowa   Code   section   908.10A,   the   parole-revocation

sentencing statute, permits the district court to impose a consecutive

sentence without stating a reason for doing so.         Hill argues, and the

court of appeals dissent concluded, the district court abused its

discretion by failing to explain why it imposed a consecutive sentence.

The State contends, and the court of appeals majority held, the district

court need not state any reasons for imposing a consecutive sentence

because of the presumption for consecutive sentences in section

908.10A. The State alternatively argues the district court exercised its

discretion and adequately explained the reasons for the consecutive

sentence.      We interpret the statute to require an explanation for a

consecutive sentence and conclude the district court’s explanation fell

short.

         We begin with the text of Iowa Code section 908.10A, which

provides,

                 When a person is convicted and sentenced to
         incarceration in a state correctional institution in this state
         for an aggravated misdemeanor committed while on parole,
         . . . the person’s parole shall be deemed revoked as of the
         date of the commission of the new aggravated misdemeanor
         offense.
                                      6
             . . . The term for which the defendant shall be
      imprisoned as a parole violator shall be the same as that
      provided in cases of revocation of parole for violation of the
      conditions of parole. The new sentence of imprisonment for
      conviction of an aggravated misdemeanor shall be served
      consecutively with the term imposed for the parole violation,
      unless a concurrent term of imprisonment is ordered by the
      court.

(Emphasis added.) The plain language of section 908.10A makes clear

that consecutive sentences are presumed, albeit not required, and are

the default option unless the district court orders a concurrent term. See

id.

 Yet, section 908.10A expressly allows the district court to impose a

concurrent sentence, which necessarily gives the district court discretion

to impose the sentence concurrently or consecutively. Id.; see also 

id.

§ 901.8 (“If a person is sentenced for two or more separate offenses, the

sentencing judge may order the second or further sentence to begin at

the expiration of the first . . . .”). Thus, the district court had discretion

when sentencing Hill for the sex-offender-registry charge to impose the

prison sentence to run concurrent or consecutive to the prison sentence

for his parole revocation.     The district court imposed a consecutive

sentence.    Was the sentencing court required to give reasons for

imposing the consecutive sentence?         The court of appeals majority

concluded the statutory presumption for a consecutive sentence obviated

the need to give reasons. We disagree.

      Iowa Rule of Criminal Procedure 2.23(3)(d) requires the district

court to “state on the record its reason for selecting the particular

sentence.”   Rule 2.23(3)(d) applies to the district court’s decision to

impose consecutive sentences.      State v. Jacobs, 

607 N.W.2d 679, 690

(Iowa 2000). In State v. Thompson, we reiterated the purposes served by

requiring the sentencing court to explain its reasons for imposing a

particular sentence.   

856 N.W.2d 915, 919

 (Iowa 2014).         First, “[t]his
                                     7

requirement ensures defendants are well aware of the consequences of

their criminal actions.”    

Id.

   Second, and “[m]ost importantly,” this

requirement “affords our appellate courts the opportunity to review the

discretion of the sentencing court.” 

Id.

 Both purposes are served when

offenders are sentenced under section 908.10A.          We hold that rule

2.23(3)(d) applies to require the district court to state the reasons for its

sentence, notwithstanding the statutory presumption for consecutive

sentences in section 908.10A.      The court of appeals erred by holding

otherwise.

      We next address whether the reasons given by the district court

adequately explained Hill’s consecutive sentence.        In the sentencing

colloquy, the district court, immediately after announcing its decision to

impose a two-year prison term to run consecutive to the parole

revocation, stated, “The reason for the sentence is protection of the

community, seriousness of the crime, and the nature and circumstances

of the offense.” Those three reasons arguably applied to both the length

of Hill’s sentence and the court’s decision to make it consecutive.       In

Thompson, we concluded that similar reasons can be sufficient to show

the exercise of discretion to impose a particular sentence. 

856 N.W.2d at 918, 921

 (noting that the judge “can use forms, such as the one available

in this case, to check the boxes indicating the reasons why a judge is

imposing a certain sentence”).     The reasons given for Hill’s sentence

mirror the reasons considered sufficient in Thompson.        See 

id. at 918

(setting forth checklist that included as grounds for Thompson’s

sentence, “[t]he nature and circumstances of the crime” and “[p]rotection

of the public from further offenses”). Thompson, however, did not involve

consecutive sentences, and the district court, when giving reasons for
                                     8

Hill’s sentence, did not explicitly state the same reasons supported

making the sentence consecutive.

      Hill concedes that the district court’s statement was adequate to

explain why it imposed a two-year prison term instead of a suspended

sentence but argues the district court failed to further explain why it

made its sentence consecutive to the prison term for the parole

revocation.   We agree.     In State v. Hennings, we concluded that the

district court’s stated reasons for sentences also applied to its decision to

run them consecutively as part of an “overall sentencing plan.”          

791 N.W.2d 828

, 838–39 (Iowa 2010) (quoting State v. Johnson, 

445 N.W.2d 337

, 343–44 (Iowa 1989)).

      In our view, the stated reasons in this case were insufficient “to

allow appellate review of the trial court’s discretionary action” to impose

a consecutive sentence. Barnes, 

791 N.W.2d at 827

 (quoting Jacobs, 

607 N.W.2d at 690

); see State v. Thacker, 

862 N.W.2d 402, 408

 (Iowa 2015)

(“While [rule 2.23(3)(d)] requires a statement of reasons on the record, a

‘terse and succinct’ statement may be sufficient, ‘so long as the brevity of

the court’s statement does not prevent review of the exercise of the trial

court’s sentencing discretion.’ ” (quoting Johnson, 

445 N.W.2d at 343

));

Thomas, 

547 N.W.2d at 225

 (“The sentencing court . . . is generally not

required to give its reasons for rejecting particular sentencing options”).

The district court made no mention of the statutory presumption for a

consecutive sentence in Iowa Code section 908.10A. We cannot tell from

this record whether the district court understood it had discretion under

that statute to choose concurrent or consecutive sentences. We are also

unsure whether the stated reasons for the sentence applied to both the

decision to reject Hill’s request for a suspended sentence and the

decision to make his sentence consecutive.       Finally, the district court
                                     9

missed the opportunity to elaborate about the separate crimes committed

by Hill at different times—the underlying sex-crime conviction for which

his parole was to be revoked and his new sentence for violating the sex-

offender registry statute while on parole.

      We encourage sentencing courts to give more detailed reasons for a

sentence specific to the individual defendant and crimes and to expressly

refer to any applicable statutory presumption or mandate. Sentencing

courts should also explicitly state the reasons for imposing a consecutive

sentence, although in doing so the court may rely on the same reasons

for imposing a sentence of incarceration.    To the extent our precedent

such as Hennings and Johnson allowed us to infer the same reasons

applied as part of an overall sentencing plan, we overrule them.

      The rule of law announced in this case overruling Hennings and

Johnson shall be applicable to the present case, those cases not finally

resolved on direct appeal in which the defendant has raised the issue,

and all future cases.

      IV. Conclusion.

      For these reasons, we vacate the decision of the court of appeals,

reverse the sentencing order of the district court, and remand the case

for resentencing.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT SENTENCE VACATED AND CASE REMANDED.

      All justices concur except Appel and Wiggins, JJ., who concur

specially.
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                                                    #15–0030, State v. Hill

APPEL, Justice (concurring specially).

      In this era of plea bargains, sentencing is often the most critical

phase of a criminal proceeding. As noted by one leading treatise,

      For defense counsel to focus efforts exclusively on trials is to
      ignore a crucial reality of criminal law: sentencing has as
      much—and often more—ultimate impact on clients and
      society than verdicts of guilt.

Arthur W. Campbell, Law of Sentencing § 13:1, at 506–07 (2004). And as

one of the leading authorities on sentencing has observed,

      [B]ecause a sentencing outcome is the ultimate conclusion to
      the vast majority of criminal cases, the quality of most
      defendants’ representation will likely be reflected—and have
      its greatest bottom-line impact—at sentencing.

Douglas A. Berman, From Lawlessness to Too Much Law? Exploring the

Risk of Disparity from Differences in Defense Counsel Under Guidelines

Sentencing, 

87 Iowa L. Rev. 435

, 437 (2002).

      But too often in our courtrooms, sentencing is given short shrift by

the participants. See Cait Clarke & James Neuhard, “From Day One”:

Who’s in Control as Problem Solving and Client-Centered Sentencing Take

Center Stage?, 

29 N.Y.U. Rev. L. & Soc. Change 11

, 12 (2004) [hereinafter

Clarke & Neuhard] (“Sentencing is too often considered an afterthought

rather than seen as a critical stage in a criminal case.”).     There often

seems to be an assumption that the process that led to the determination

of guilt is generally sufficient to inform the court of the necessary

information for sentencing.

      But this assumption is questionable. As has been observed,

      Trial determines a defendant’s guilt; sentencing prescribes
      an offender’s fate.

            Trials    are     backward-looking,      offense-oriented
      events. . . .
                                   11
            . . . Sentencing necessarily incorporates offender-
      oriented considerations, many of which are forward-looking.
      Though sentencing judgments often consider how and why
      the crime was committed, the focus is different and
      broader. . . . [W]hereas a defendant’s background and the
      criminal justice system’s purposes would be distracting or
      prejudicial at trial, they are key considerations at
      sentencing.

Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible,

4 Ohio St. J. Crim. L. 37

, 54–55 (2006).

      The importance of sentencing and its difference from the guilt

phase of trial is recognized in professional standards that have been

developed by leading legal organizations.     The ABA Standards for the

Defense Function require a defense lawyer to conduct a prompt

investigation that “should explore appropriate avenues that reasonably

might lead to information relevant to . . . potential dispositions and

penalties.”   ABA Criminal Justice Standard for the Defense Function

4-4.1(c),      www.americanbar.org/groups/criminal_justice/standards/

DefenseFunctionFourthEdition.html.         In addition, a defense lawyer

“should present all arguments or evidence which will assist the court or

its agents in reaching a sentencing disposition favorable to the accused”

and should verify, supplement, or challenge information in any

presentence report made available to the defense. 

Id.

 standard 4-8.3(c),

(e); see generally Miriam S. Gohara, Grace Notes: A Case for Making

Mitigation the Heart of Noncapital Sentencing, 

41 Am. J. Crim. L. 41

,

(2013) [hereinafter Gohara] (recommending that defense counsel present

a vigorous mitigation defense in noncapital cases).

      The National Legal Aid and Defender Association (NLADA) has

developed more detailed guidelines for defense sentencing representation.

The NLADA Guidelines for Defense in Sentencing require counsel to

develop a plan for achieving the least restrictive sentencing outcome
                                     12

based on the client’s social history and require where necessary, the

opportunity to present evidence at a sentencing hearing.                 NLADA

Performance Guideline for Criminal Defense Representation 8.1 (1995).

Counsel must ensure that “all reasonably available mitigating and

favorable information, which is likely to benefit the client, is presented to

the court.”   Id.; see Gohara, 41 Am. J. Crim. L. at 62.        According to

observers,

      Sentencing preparation requires aggressively seeking out
      information about the client’s past, current life situation, the
      criminal conduct and underlying problems of the accused,
      and then presenting that information clearly and
      persuasively to decision-makers. It cannot be done at the
      last moment or on short notice. It must begin as early as
      possible in a case.

Clarke & Neuhard, 29 N.Y.U. Rev. L. & Soc. Change at 53.

      Once a lawyer has fulfilled the distinct professional responsibilities

related to sentencing, the district court must exercise its discretion in

setting the sentence. Even in a case that seems less consequential than

other matters on a court’s crowded docket, the impact on the parties

with a stake in the sentencing decision is substantial and requires a

careful,   thoughtful   discretionary   decision   by   the   district   court.
Sentencing is not a time to cut corners.

      Last term we decided the case of State v. Thacker, 

862 N.W.2d 402

(Iowa 2015). In Thacker, we reviewed the importance of a statement of

reasons for a sentence.    

Id.

 at 405–07.    We cited a seminal article by

Marvin Frankel, who emphasized that “the giving of reasons helps the

decision-maker . . . in the effort to be fair and rational, and it makes it

possible for others to judge whether he has succeeded.”             Marvin E.

Frankel, Lawlessness in Sentencing, 

41 U. Cin. L. Rev. 1

, 9 (1972). And

as Justice McCormick noted in his concurring opinion in State v. Horton,
                                    13

reasons for articulating sentences include increasing the rationality of

sentencing, the therapeutic value of sentencing on the defendant,

ensuring   meaningful   appellate   review,    and   informing   correctional

authorities of the reasoning behind the sentence.       

231 N.W.2d 36, 41

(Iowa 1975) (McCormick, J., concurring specially).

      The court in dicta indicates that the reasons for imposing

consecutive rather than concurrent may be the same as the reasons for

the sentence in the underlying crimes.        In the abstract, I agree.   The

decision regarding whether sentences are served concurrently or

consecutively, however, is often of great moment and, as the court

recognizes, must be made separately from the underlying sentence on

each count.      A decision to impose a lengthy prison term for the

underlying crimes is not the same as the geometric increase in

incarceration that may result from a decision to run sentences

consecutively.   In considering the distinct question of whether to run

sentences consecutively or concurrently, the district court must be

careful to avoid mere boilerplate recitation and demonstrate an exercise

of reasoned judgment.

      The court today, consistent with Thacker, takes another step in the

direction of encouraging the kind of deliberation and expression that is

required given the importance of the sentencing decision on the parties

involved and the criminal justice system.

      Wiggins, J., joins this special concurrence.