Opinion
No. 4-056 / 03-0974
Filed March 10, 2004
Appeal from the Iowa District Court for Johnson County, Amanda Potterfield, Judge.
Christopher Neuzil appeals his sentence, following his guilty plea for possession and delivery of five grams or more of methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (2003), and for the manufacture, possession and delivery of less than five grams of methamphetamine in violation of Iowa Code section 124.401(1)(c)(6). AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, J. Patrick White, County Attorney, and David Tiffany, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Christopher Neuzil appeals his sentence, following his guilty plea, for possession and delivery of five grams or more of methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (2003), and for the manufacture, possession and delivery of less than five grams of methamphetamine in violation of section 124.401(1)(c)(6). He claims the district court failed to exercise its discretion when imposing fines against him. We affirm in part and reverse and remand in part.
I. Background Facts Proceedings
On March 10, 2003, the State charged Neuzil by trial information with possession and delivery of less than five grams of methamphetamine, a class C felony, in violation of Iowa Code sections 124.401(1)(c)(6) and 124.206(4)(b), Count I; possession and delivery of five grams or more of methamphetamine, a class B felony, in violation of sections 124.401(1)(b)(7) and 124.206(4)(b), Count II; and control or possession of a firearm by a felon, a class D felony, in violation of section 724.26. Per their plea agreement, Neuzil pled guilty on June 5, 2003, to Count I and Count II, the State voluntarily dismissed Count III, and the court agreed to waive one-third of the mandatory minimum prison term on Count II. Neuzil was sentenced to a term of imprisonment of up to ten years along with a $1000 fine for Count I, and a term of imprisonment of up to twenty-five years along with a fine of $5000 for Count II, the sentences to run concurrently. Neuzil appealed.
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).
III. Fines
During sentencing, the district court ordered Neuzil to pay fines under Counts I and II after the following discussion took place:
MR. TIFFANY: Your Honor, on the felony drug charges, I don't believe the fines can be suspended. They can on possession, they can on almost virtually everything else, but in this particular area, I don't believe they can be.
THE COURT: I'm going to apparently have to impose, Mr. Neuzil, the minimum fine of $1,000 in [Count I] and $5,000 in [Count II].
Neuzil argues the prosecutor misinformed the court as to its ability to exercise its discretion in suspending the fines, and therefore, requests our court to remand for resentencing.
The State concedes the prosecutor and district court were wrong in concluding the court had no discretion to suspend the fine under Count I. Pursuant to Iowa Code section 907.3(3), the court has the discretion to suspend a sentence that does not fall within an enumerated list of offenses. Count I, a violation of section 124.401(c), is not one of the excluded offenses. We find the court erred when it determined that it had to issue a mandatory minimum fine of $1000.
The parties disagree on the court's ability to suspend the Count II fine under Iowa Code section 124.401(1)(b)(7). Neuzil argues that under section 901.10, the sentencing court has discretion to reduce a first offender's mandatory minimum sentence following a guilty plea under section 124.401(1)(b). However, section 901.10 refers to the court's ability to sentence the defendant to a term reduction and makes no reference regarding the possibility of reducing mandatory fines. See Iowa Code § 901.10(1). We find this statute is inapplicable to the issue in this case.
According to Iowa Code section 124.401(1)(b), a violation of this statute is punishable in part by a "fine of not less than five thousand dollars nor more than one hundred thousand dollars." Moreover, Iowa Code section 907.3(3)(e) states:
[T]he court shall not suspend any of the following sentences:
e. The offense is a violation of section 124.401, subsection 1, paragraph "a" or "b", and the controlled substance is methamphetamine.
The district court was without discretion to lower the Count II fine below the $5000 it imposed on June 5, 2003. We accordingly affirm the court's sentence under Count II and reverse and remand for resentencing for the fine portion under Count I. See State v. Spivie, 581 N.W.2d 205, 210 (Iowa Ct.App. 1998) (remanding for reconsideration of the fine portion when both the trial court and prosecution incorrectly believed the fine was mandatory).