Opinion
No. 5-295 / 04-1664
Filed June 15, 2005
Appeal from the Iowa District Court for Fremont County, Keith E. Burgett (plea) and James Richardson (sentencing), Judges.
Toby Merritt appeals from his convictions, following a guilty plea, to various drug offenses. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Marti Heinicke, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Toby Merritt appeals from his convictions, following a guilty plea, to various drug offenses. We affirm in part, reverse in part and remand.
Background Facts and Proceedings.
Early in the morning of September 6, 2002, Sheriff's Deputy Scott DeLong arrested Toby Merritt and Nathan Callahan at an anhydrous ammonia storage area after he observed them drain anhydrous ammonia into two containers. DeLong had earlier observed Jason Andrews drop the two off at the anhydrous site. Other officers stopped Andrews' car, in which they discovered camp fuel, cut batteries, crushed pseudoephedrine tablets, and a length of hose.
Based on this incident, the State charged Merritt with the following charges: Count I, possession of a precursor, to wit: lithium; Count II, prohibited acts; Count III, possession of drug paraphernalia; Count IV, conspiracy to manufacture methamphetamine and Count V, tampering with anhydrous ammonia equipment. Merritt appeared before the district court and entered guilty pleas to all charges as part of an agreement to transfer the charges to drug court. However, Merritt subsequently violated the conditions of his drug court probation and the district court sentenced him on all five charges. This appeal followed.
Waiver of Right to Appeal.
As an initial matter, we note that as part of the agreement to transfer the case to the drug court, Merritt purportedly waived his right to appeal. The district court also briefly informed Merritt that by entering drug court he waived his right to file a motion in arrest of judgment. However, because the court's colloquy on these matters was plainly insufficient, see State v. Loye, 670 N.W.2d 141, 148-50 (Iowa 2003), we proceed to address the merits of Merritt's claims on appeal.
Claims on Appeal.
Nature of the Charges.
Iowa Rule of Criminal Procedure 2.8(2)( b)(1) requires a defendant to be informed of the nature of the charge to which he is pleading guilty and that the court determine the defendant understands the nature of the charge to which the plea is offered. We apply a substantial compliance standard in assessing whether the trial court has adequately informed the defendant of the nature of the crime. State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002). The court need not review and explain each element of the crime if it is "apparent in the circumstances the defendant understood the nature of the charge." State v. Smith, 300 N.W.2d 90, 92 (Iowa 1981). In some situations, the name of the offense may be sufficient to describe the nature of the offense. State v. Yarborough, 536 N.W.2d 493, 496-97 (Iowa Ct.App. 1995).
We conclude the court's minimal oral colloquy with Merritt and the name of the offenses, in conjunction with the trial information and the minutes of testimony, established substantial compliance with rule 2.8(2)( b)(1). While the procedure undertaken below was not a model of compliance, we are nonetheless reasonably satisfied that Merritt sufficiently understood the nature of the offenses with which he was charged. See Iowa R. Crim. P. 2.8(2)( b)(1).
Factual Basis.
We next address Merritt's contention the charges for Counts I, II, and IV lack a factual basis. Rule 2.8(2)( b) requires that a court may not accept a guilty plea unless it is supported by a factual basis. A court may determine a factual basis for a guilty plea by (1) inquiry of the defendant; (2) inquiry of the prosecutor; (3) examination of the presentence report; or (4) reference to the minutes of testimony. See State v. Johnson, 234 N.W.2d 878, 879 (Iowa 1975). The State concedes that Count II, prohibited acts in violation of Iowa Code section 124.407 (2003), lacks a factual basis. We agree and therefore reverse the conviction on this count. Next we review whether a factual basis exists for the two remaining counts.
Merritt concedes a factual basis exists for Count III, possession of drug paraphernalia and Count V, tampering with anhydrous ammonia.
Count I, Possession of a Precursors; to-wit Lithium.
The trial information charged Merritt with "possession of a precursor to-wit lithium," in violation of Iowa Code section 124.401(4). Merritt pled guilty to the charge of "possession of a precursor which was alleged to be lithium." No subsection to section 124.401(4) was specified either in the charging document, at the plea hearing, or in the order of conviction. Subsection (d) criminalizes the possession of anhydrous ammonia, while subsection (f) criminalizes the possession of lithium.
As noted above, while Merritt was arrested in the physical possession of anhydrous ammonia, he was not in possession of lithium. The lithium was found in Jason Andrews' vehicle, which was stopped in a separate location. Merritt was not arrested in this vehicle, nor was he was charged as an aider and abetter. Thus, the facts do not support a factual basis to possession of lithium. However, apparently recognizing this, the State claims that a "fair reading of the plea colloquy" reveals that all involved knew that the possession of anhydrous ammonia was at issue. It requests that we remand to allow the judgment to reflect the proper Iowa Code subsection. We do not find this to be a proper remedy, but rather reverse Merritt's conviction on Count I, possession of the precursor lithium.
Count IV, Conspiracy to Manufacture Methamphetamine.
Merritt contends the record fails to establish a sufficient factual basis to support his guilty plea to conspiracy to manufacture methamphetamine. We disagree. Substantial evidence supports that Merritt and two other individuals were engaged in a plan to acquire the ingredients for the manufacture of methamphetamine. Specifically, while Merritt (and Callahan) were found in the possession of anhydrous ammonia, the vehicle Andrews was driving contained camp fuel, cut batteries, crushed pseudoephedrine tablets, and a length of hose. As contained in the minutes of testimony, Andrews admitted to officers that his plan was to drive around in order to give Merritt and Callahan time enough to acquire the anhydrous ammonia and then he would return and pick them up. The record provides a sufficient factual basis to support this conviction. We therefore affirm.
Consecutive Sentences.
As we are reversing Merritt's convictions on both Counts I and II, this portion of our opinion deals only with the sentences imposed for Counts III, IV and V. Merritt argues the district court abused its discretion in imposing consecutive sentences and erred in failing to give adequate reasons for the sentence imposed. Our scope of review of a district court's decision regarding sentencing is for an abuse of discretion or for defects in the sentencing procedure. State v. Garrow, 480 N.W.2d 256, 259 (Iowa 1992).
The sentences were: Count III, not to exceed 30 days incarceration; Count IV, not to exceed ten years; Count V, not to exceed one year. A separate charge from Mills County, not part of this appeal, included an additional ten year term of incarceration.
Under Iowa Rule of Criminal Procedure 2.23(3)( d), a trial court must state on the record its reasons for selecting a particular sentence. See State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). A court must also give reasons for its decision to impose consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). However, where the "sentencing court was merely giving effect to the parties' agreement" a failure to state reasons for the sentence imposed is not reversible error. State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995).
Here, Merritt was initially informed that as part of the drug court program he would be sentenced to consecutive sentences if he failed to complete the program. He agreed on the record to this arrangement. As the district court explained at the time Merritt pled guilty, he was receiving an opportunity to have his charges dismissed if he complied with and completed the requirements of his probation with the drug court. The following colloquy occurred between the court and Merritt prior to receiving Merritt's plea:
The Court: I want you to know now before I ask you how you plead that we don't — we don't accept the pleas here as a plea bargain. You plead straight up to the charges that are charged against you unless your attorneys have advised you and will advise me that the minutes of testimony can't support a conviction on those particular charges. Likewise, if you don't successfully complete this drug court program, you're going to be sent to prison and the charges will be stacked against you. That means that they'll run consecutively, not concurrent. They won't all be run together but they'll be stacked and you'll spend your time down there based upon the rules of the prison and it will be a lot longer than you would anticipate if you were to plead guilty and be sent to prison now. You understand that?
Merritt: Yes, sir.
The Court: So you're making a concession here that may not otherwise be available to you by coming to this drug court program and I've told all of the other people and they've heard me say this before and I'll say it to you. It isn't a cakewalk. It isn't a sweetheart deal that — that you're getting now but it is the greatest opportunity you've ever had in your lifetimes to straighten out, fly right and be clean and sober and enjoy — and enjoy the family and friends who have come here to see you get into these programs. You understand that?
Merritt: Yes, sir.
. . . The Court: So what you have done here is pled guilty to two Class D felonies, five years each; a C felony which is ten and a total of 20 years plus two — or one serious misdemeanor which is a one-year sentence and a simple misdemeanor possession of drug paraphernalia which is a 30-day sentence in the county jail. So you have pled guilty essentially to a term of 21 years plus six months; is that right?
Mr. Feistner [Merritt's attorney]: Correct, your Honor.
. . .
The Court: Do you have any questions, Mr. Merritt, about any of it?
Merritt: No.
As reflected in the court's colloquy, Merritt was offered to have all five charges against him dropped if he completed the drug court program. If he failed to comply, he would accept the consequences of going to prison for the full terms of his collective sentences. Although it may appear somewhat harsh, it appears to be not only the agreement of the parties, but also part of the incentive for Merritt to comply with the drug court program.
However, we nonetheless believe remand for resentencing is required. The district court does not lose its sentencing discretion merely because it warns an individual entering drug court that he or she will face a stiff sentence if unsuccessful in the drug court program. In State v. Thomas, 659 N.W.2d 217 (Iowa 2003), a scenario similar to that presented in this case was addressed. There, like here, before the defendant agreed to plead guilty and enter drug court, the district court informed him of the specific sentence he could expect, stating "he would `end up doing 20 years in the penitentiary' if he failed to successfully complete the program." Id. at 219. Our Supreme Court remanded for resentencing in order to, among other things, allow the defendant his right to allocution. Id. at 222. Of course, the purpose of the right to allocution is to allow the defendant to argue in mitigation of punishment. See Iowa R. Crim. P. 2.23(3)( d). Clearly, if the court had no discretion in imposing a predetermined sentence, the right to argue for mitigation of that sentence would be useless.
Here, it appears the sentencing court imposed the sentence it did due solely to the previous indication of what sentence would be imposed if Merritt proved unsuccessful in the drug court program. It did not appear to consider either additional factors or alternative sentencing options. We believe the district court's failure to exercise discretion in imposing sentence was, in fact, an abuse of its discretion. See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 631 (Iowa 2000) (stating a failure to exercise discretion is an abuse of discretion). Moreover, its failure to state reasons for the particular sentence imposed was error. See State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996) (noting the purpose of a statement of reasons for the sentence is to enable a reviewing court to adequately perform its duties). Accordingly, we remand for resentencing.
Presentence Investigation Report.
Merritt further claims his sentence is illegal because it was imposed without the preparation or consideration of a presentence investigation (PSI) report. A court is required to order a presentence investigation when a defendant is found guilty of a class "B", "C", or "D" felony and its preparation cannot be waived. Iowa Code § 901.2. The PSI report serves the dual purposes of providing the sentencing court with pertinent information for purposes of sentencing and providing information for correctional planning use by correctional authorities. Id.; State v. Uthe, 541 N.W.2d 532, 533 (Iowa 1995). We find no indication that Merritt waived the use of a PSI report in sentencing. Accordingly, upon remand the district court shall order that such a report be prepared. Only upon receipt of this report may it proceed to resentencing.