STATE OF IOWA, Appellee, vs. DAIRRAMEY MOORE, Appellant.
No. 18–1877
IN THE SUPREME COURT OF IOWA
Filed December 13, 2019
On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Clinton County, Mary Howes, Judge.
Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Mike Wolf, County Attorney, and Amanda Myers, Assistant County Attorney, for appellee.
When a sentencing court indicates it lacks “wiggle room” regarding whether to reduce a five-year minimum prison sentence, should we conclude that the court did not understand it had discretion to do so and thus failed to exercise its discretion? We reach that conclusion on this record and remand for resentencing.
I. Background Facts and Proceedings.
A jury could find these facts from the trial testimony. Dairramey Moore and a companion went to a home in Clinton to collect beer money owed them by an occupant. The home was equipped with surveillance cameras, and a witness placed Moore on the east side of the house. Shots rang out, and Moore was shown on video running away with his right hand in his pocket. The physical evidence showed shots had been fired from the east side into the home and from inside the house out towards that side. Moore was charged with (1) intimidation with a dangerous weapon, (2) going armed with intent, and (3) reckless use of a firearm. A jury found Moore guilty of the first and third counts.
At the sentencing hearing, the State requested a sentence of incarceration up to ten years on count one (intimidation with a dangerous weapon). The State noted that count one is a forcible felony with incarceration required under
THE COURT: Mr. Kroeger, what would you like to say on Mr. Moore‘s behalf?
THE COURT: I‘m sorry, what?
MR. KROEGER: We don‘t have too much wiggle room here.
THE COURT: No.
Neither the State nor defense counsel cited another applicable statute,
A court sentencing a person for the person‘s first conviction under
section . . . 902.7 may, at its discretion, sentence the person to a term less than provided by the statute if mitigating circumstances exist and those circumstances are stated specifically in the record.
This was Moore‘s first such conviction. Defense counsel, however, noted on the record that Moore “is a veteran, and he did serve in . . . a battlefield situation” and “has PTSD, anxiety, depression, [a] traumatic brain injury, [and] he‘s on some pretty heavy medications.”
The court sentenced Moore to a term of incarceration of up to ten years with a mandatory minimum of five years on count one and a sentence of up to two years on count three, to be served concurrently. The court gave this explanation for its sentence:
I‘ve reviewed the presentence investigation report, and as I mentioned, you were found guilty of these counts by a trial by jury. And the law, as the attorneys commented, requires incarceration because it‘s a forcible felony under the code section done by the legislature.
And, also, there is a reason for that, which is it was a dangerous situation, and so the safety of the community in a dangerous situation would also warrant incarceration.
So under Count I, under [section] 708.6, intimidation with a dangerous weapon with intent, a Class C felony, the Court sentences you to an indetermin[ate] term of ten years . . . .
. . . And based on a weapon being used, under [section] 902.7, the Court sentences you to a mandatory minimum of five years before you‘re eligible for parole or discharge.
Moore appealed, arguing (1) the evidence was insufficient to support his convictions, (2) the court failed to exercise its discretion in imposing his sentence, and (3) the court erred in ordering him to pay attorney fees, court costs, and jail fees without first determining his reasonable ability to pay the same. We transferred his case to the court of appeals, which affirmed his convictions as supported by sufficient evidence. The court of appeals also affirmed Moore‘s prison sentence, presuming the court exercised its discretion and viewing the “don‘t have much wiggle room” commentary as simply a recognition that incarceration was required because a suspended sentence was not permitted. Finally, applying State v. Albright, 925 N.W.2d 144, 161 (Iowa 2019), the court of appeals vacated the restitution order and remanded the case for a determination of Moore‘s reasonable ability to pay after receipt of a final restitution plan. We granted Moore‘s application for further review.
II. Standard of Review.
“On further review, we can review any or all of the issues raised on appeal . . . .” Cote v. Derby Ins. Agency, Inc., 908 N.W.2d 861, 864 (Iowa 2018) (alteration in original) (quoting Papillon v. Jones, 892 N.W.2d 763, 769 (Iowa 2017)). We choose to limit our review to the claim that the district court failed to exercise its discretion in imposing the prison sentence. We let the court of appeals decision stand as the final decision on the remaining issues. See id.
III. Analysis.
We granted further review to determine whether the district court failed to exercise its discretion under
Two precedents are relevant here—State v. Russian, 441 N.W.2d 374 (Iowa 1989), and State v. Ayers, 590 N.W.2d 25 (Iowa 1999). In Russian,
Based on our review of this record, we conclude this is an Ayers-type case. We determine that the district court was unaware that it had discretion under
IV. Disposition.
For these reasons, we vacate Moore‘s sentence and remand for resentencing consistent with this opinion. The court of appeals decision stands as the final decision on the remaining issues.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.