State of Iowa v. Warren William Lovell ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0450
Filed March 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WARREN WILLIAM LOVELL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Joel W.
Barrows, Judge.
A defendant, who pleaded guilty to two counts of incest, challenges the
reasons given for his consecutive sentences. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.
For the third time, Warren Lovell challenges the consecutive sentences
imposed following his guilty pleas to two counts of incest. In two previous
appeals, Lovell successfully argued the district court considered an
impermissible factor when choosing his sentence. In this appeal, Lovell
contends the district court erred on the opposite side, failing to demonstrate it
considered the minimum essential factors.
Because the district court expressed, albeit succinctly, its reasons for
imposing consecutive terms, we affirm Lovell’s sentence.
The district court is required to “state on the record its reason for selecting
the particular sentence.” Iowa R. Crim. P. 2.23(3)(d). We review the record to
assess whether the district court abused its discretion in failing to provide its
rationale for the sentence imposed. See State v. Oliver, 588 N.W.2d 412, 414
(Iowa 1998). We will only find an abuse of discretion when a court acts on
grounds clearly untenable or to an extent clearly unreasonable. Id.
On December 3, 2012, Lovell appeared in the district court and pleaded
guilty to two counts of incest, class “D” felonies, in violation of Iowa Code section
726.2 (2011). He admitted twice having oral sex with a relative. When Lovell
was sentenced in January 2013, the district court impermissibly considered an
unproven factor, prompting the State to concede in the first appeal that
resentencing was required. When Lovell was resentenced in November 2013,
the district court again mentioned the unproven information. The court also
expressed concern Lovell was not taking responsibility for his crimes and instead
was blaming the child. Our supreme court vacated the sentence and remanded
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for resentencing before a different judge. State v. Lovell, 857 N.W.2d 241, 243
(Iowa 2014) (explaining “although the district court attempted to disclaim the
reference to the impermissible sentencing factor, ‘we cannot speculate about the
weight the sentencing court gave to these unknown circumstances. Since we
cannot evaluate their influence, we must strike down the sentence’” (citation
omitted)).
On March 6, 2015, Lovell again appeared for sentencing. The district
court assured the parties that it reviewed the presentence investigation (PSI)
report, but noted “for the record” it would not consider any criminal history that
did not result in a conviction. The State again asked the court to impose
consecutive prison sentences for the two counts. Defense counsel asked the
court to follow the PSI recommendation, “which calls for probation and possibly a
Residential Correctional Facility.” Counsel noted his client was seventy years
old, had no other criminal history, and admitted guilt. Lovell opted not to exercise
his right of allocution, and the victim was not present to speak at sentencing,
though she had done so at the previous hearings.
The district court imposed indeterminate five-year prison terms on each
count, ordering Lovell to serve them consecutively. The court stated: “The
reasons for the sentences are your age, the nature of the offenses, protection of
the community, the fact that these were separate incidents.” The court further
stated “the overall sentencing plan here warrants consecutive sentences.”
On appeal, Lovell argues the district court’s “boilerplate language is
insufficient” to allow review of its exercise of discretion. In legal usage,
“boilerplate” means “ready-made or all-purpose language that will fit in a variety
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of documents.” Bryan A. Garner, Garner’s Dictionary of Legal Usage 115 (3d ed.
2011).1 Our supreme court has “rejected a boilerplate-language approach that
does not show why a particular sentence was imposed in a particular case.”
State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015). But the Thacker court
opined “terse reasoning can be adequate” if “the statement in the context of the
record demonstrates what motivated the district court to enter a particular
sentence.” Id.
In seeking to uphold the sentence, the State argues the district court’s list
of reasons “viewed within the context of the entire sentencing proceeding,
provide an explanation which is sufficient for the court’s discretionary decision to
be reviewed.” The State contends the court properly considered that Lovell was
nearly seventy years of age at the time of the offenses—a mature adult with “a
fully developed understanding of right and wrong, such that there is no excuse
for his behavior.” The State also argues the court’s motivation for imposing
consecutive prison terms rather than probation can be detected from its
references to the nature of the offenses, their commission on entirely separate
occasions, and the need to protect the community. On the need to protect the
community from Lovell, the State points to the defendant’s version of events in
the PSI where he fails to accept full responsibility for the offenses, stating the
child “came on to me but I let her” and he was also a victim of the events.
This case illustrates the tightrope walk that must be performed by a
sentencing judge. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.
1
The term originated from “the newspaper business, in which it originally referred to
syndicated material in mat or plate form.” Garner’s Dictionary of Legal Usage at 115.
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1994) (recognizing “sentencing process can be especially demanding and
requires trial judges to detail, usually extemporaneously, the specific reasons for
imposing the sentence”). Say too much and be perceived to have considered
impermissible factors; say too little and risk not providing adequate reasons for
the chosen sentence. Clearly, the court performing Lovell’s re-resentencing tried
to avoid the pitfall of considering improper information.
The question here is whether the somewhat succinct and generic nature
of the court’s statement of reasons “handicaps our review of the sentencing
discretion.” See State v. Carberry, 501 N.W.2d 473, 478 (Iowa 1993) (upholding
sentences despite “extremely terse” statement by the court because it was
“reasonably clear from what was said that the judge imposed consecutive
sentences based on his perception of the aggregate culpability of two separate
and distinct heinous offenses”). We conclude the court’s statement of reasons,
viewed in context, provides a sufficient basis for us to evaluate its motivation for
ordering consecutive sentences. See State v. Johnson, 445 N.W.2d 337, 343
(Iowa 1989). As in Johnson, the sentencing court announced its review of the
PSI and cited several pertinent factors that accounted for the decision to boxcar
the prison terms. We find no abuse of discretion in the sentencing court’s
compliance with rule 2.23(3)(d).
AFFIRMED.