*1 declaratory order under Iowa Code section
17A.9(l)(a.) lawsuit, bringing before that future will
claiming events result within an agency’s
violation of statute Finally,
primary jurisdiction. we vacate part appeals of the court of decision
finding ripe adjudica- the matter is not Accordingly,
tion. we affirm the
of the district court. AP-
DECISION OF COURT OF
PEALS AFFIRMED IN PART AND VA- PART; IN
CATED DISTRICT COURT AFFIRMED.
JUDGMENT Iowa, Appellee,
STATE of
v. Ray
Kenneth WASHINGTON
III, Appellant.
No. 12-0305.
Supreme Court of Iowa.
June 2013. *2 Rehkemper Gourley, G. III of
Robert Lindholm, PLC, Rehkemper & Des Moines, appellant. for General, Miller, Attorney Thomas J. Mullins, Attorney Darrel L. Assistant Gen- eral, Sarcone, County Attorney, P. John Hathaway, County D. and Kevin Assistant appellee. Attorney, for Clair-Femrite, J. Student Le- Matthew Intern, Rigg, Supervis- and Robert R. gal Moines, Des for amicus curi- ing Attorney, Clinic, University Legal Criminal ae Drake Program. Defense Dickey Dickey Camp- & Gary D. Jr. of Moines, Firm, P.L.C., Des bell Law curiae of Iowa. amicus ACLU WATERMAN, Justice. appeal,
In this we must decide whether improperly penalized invoking his Fifth speaking twenty-one-year- While with the driver, self-incrimina- old Washington, Siepker smelled “a strong marijuana tion. We conclude that when the district odor of coming from in- *3 question court asks the defendant a side the Siepker Washing- vehicle.” told imposes step and then an adverse ton to out of the car and asked if he any sentencing consequence unrelated to could search him. Washington consented legitimate penological purpose inqui- of the to the Siepker plastic search. found two ry because the bags defendant invoked his Fifth of what Washington admitted was rights, marijuana pockets has in his along with a met- been improperly penalized. marijuana pipe al digital and a scale. Siepker next found small plastic bags with pled guilty Kenneth R. III marijuana residue and loaded revolver in possession marijuana. to The State the trunk Washington’s ear. Washing- agreed jointly to recommend a deferred handgun ton admitted the belonged to him. judgment fifty community with hours of Washington was arrested and later service, year probation, one and a $500 charged by trial information carrying with penalty. hearing civil At the plea his a weapon in violation of Iowa Code section sentencing, (initially and the court off the (2011), misdemeanor, aggravated 724.4 record) it judg- first indicated would defer possession of a and controlled substance ment, but then threatened to convict (marijuana) in violation of Iowa Code sec- declined, Washington immediately after he 124.401(5), a serious misdemeanor. counsel, on advice of to answer the court’s He also charged possession was with question positive of whether he would test drug paraphernalia in violation of section given if drug test. The court repeated 124.414,a simple misdemeanor. the drug-test inquiry on the record. De- again fense counsel invoked Washington’s Washington completed a court-ordered right to remain silent. The court deferred substance-abuse evaluation and reached a judgment, but 250 hours of com- plea agreement prosecution. with the He munity service and a penalty. civil $350 agreed plead guilty possession marijuana in exchange for dismissal of the granted Washington’s application for weapons drug and paraphernalia charges. discretionary review and retained ap- agreed jointly The State recommend review, peal. On our de novo we find that fifty with hours of com- by imposing 250 hours of ser- service, munity year one probation, and vice penological goal unconnected to a re- penalty. civil plea agreement The $500 lated to the inquiry, court’s such was not conditioned accep- on the court’s treatment, court improper- tance of sentencing requests. those On ly penalized Washington for invoking his 3, 2012, February Washington appeared self-in- counsel, with Rehkemper, Robert to enter crimination. We vacate the sentence and guilty plea sentencing. and for remand the case for resentencing. proceedings began off the record. Background I. Facts and Proceed- According to Rehkemper’s on-the-record ings. recapitulation of the off-the-record discus- 6, 2011, On Jeremy later, October Officer sion minutes accepted the court had Siepker patrol said, was on Heights guilty plea Windsor going “I’m and, just after midnight, pulled over a judgment.” defer explored then Dodge Neon with a burned-out light. brake Washington’s employment status and abili- rection, they with penalty. plea Matters sud- started over ty pay the $500 process on the record. tense when denly became record, court, Washing- asked still off the ensuing During colloquy, parties dirty” if if he be “clean ton would agreement. plea reiterated The court urinalysis. Rehkem- required drop plea admonished next happened of what is as per’s account court, agreement binding not on the follows: up he could be sentenced to 180 the Court I stepped days jail I in and informed fine. $1000 appropriate proceed guilty plea, it was elected to did believe with *4 Washington. to that of Mr. inquire accepted. Washington Court which the court event, in any Washington proceed And Mr. also elected to with at Washington his Fifth Amendment that de- would exercise time. Counsel silent, he any which still clined make farther right remain statement be- sentencing. fore through retains the court sentence. Washington from that elicited he had the told point, At that Court Mr. August unemployed been since and had fíne, that that’s and counsel a judgment. never received deferred he judgment, he didn’t have to defer can again: Then matters became tense take the conviction. Washington, if THE COURT: Mr. reporter asked a court Rehkemper sample you drop today, were to a urine The proceedings make con a record. dirty marijuana? it clean or would be stating tinued on record. After what the Honor, Your MR. REHKEMPER: at record, just transpired off the Reh- had going my this time I’m to instruct client argument kemper legal on his elaborated that question not to answer and invoke right had to remain that self-in- constitutional at under the Fifth silent crimination under the corresponding Amendment and “the sec corresponding the section of the [and] Iowa Constitution.” Rehkem Iowa Constitution. States, referring to Mitchell v. United per, Okay. THE What’s the COURT: 526 U.S. 119 S.Ct. L.Ed.2d position? (1999), State’s argued that a “court not make an inference of an individu adverse Honor, I HATHAWAY: Your MR. of his Fifth Amendment al’s exercise if simply ask that the Court —it’s would sentencing.” Rehkemper rights assert discretion, certainly within the Court’s ed that the district impose grant or not whether —or case. I judgment in this would deferred accepted plea agree- had all [the but spe- simply ask that Court enunciate ment], only appears it reason deny- granting its reasons for cifically why judg- would not defer the Court any judgment, event. a deferred ment, Washington, Mr. would be as to ques- of not to answer the election And, Your MR. REHKEMPER: drop tion of whether or not he would Honor, provide I the Court with can dirty today. or clean States, if copy versus United of Mitchell it. to review would like court, disputing otherwise without Mr. right. All Wash- Rehkemper’s description of had tran- THE COURT: what record, ington, you deferred plea requesting off no had are spired stated judgment? yet. At the court’s di- accepted been Yes, THE Your I would ask the Court to DEFENDANT: reconsider specific that. And also to articulate the Honor. why basis of the Court believes you And concur THE do COURT: necessary of community hours service is request, Rehkem- your with Mr. client’s appropriate cir- under facts and per? pertained cumstances of this case as Yes, MR. REHKEMPER: Your Hon- Washington, Mr. when Court rou- formally request or. would And we tinely any community impose doesn’t in this case. judgments, service on deferred or it is matter, judg- THE COURT: anywhere from 50 to 100 hours. basing ment is The Court is deferred. special There Mr. nothing this on that Mr. has the fact Washington’s case would warrant However, history. no I’m prior criminal hours, than other the fact that accepting part plea not invoked his he constitutional agreement making the fíne $500—or question. answer Court’s *5 $315, penalty civil I’m it making $500. contrary, THE COURT: To the Mr. Washington because Mr. has not worked Rehkemper. look at You can the orders However, light since summer. in of the entered, yesterday, that were there offense, the nature of the the Court is range several in were that that involved going Washington that Mr. to order judgments. deferred complete community hours of ser- 250 MR. the REHKEMPER: Could vice, completed days. to within 150 be articulate the 250 why Court feels complete And he is 30-hour —excuse for Mr. necessary Washington’s hours in days. me—50 the next A hours 30 case? 30-day failure in a complete hours just THE COURT: It believes that period will considered to a viola- be be by Mr. would benefit probation. of service, community as would the commu- light in
nity, of the deferred being granted in this matter. Thank Anything you want on place else you. the record? application dis- filed an Yes,
MR. REHKEMPER: please. cretionary review with our court. THE Go ahead. COURT: granted application stayed and his Honor, MR. REHKEMPER: Your community obligations pending service I’d ask imposi- the Court reconsider the Meanwhile, appeal. resolution Reh- community tion of the hours of ser- kemper up followed on the court’s invita- vice, [quintupling] Washing- all but Mr. “look at yester- tion to the orders entered community ton’s service obligation. On that and day.” day preceding Honor, man, combined, Your this young Thursday who ob- sentencing orders had viously probation twenty-nine County as a condition of will entered in been Polk need to employment— pleas obtain full-time on to possession cases of a controlled well, substance, employment, search for full-time Judgment first offense. was two, and it obtain and maintain it while eleven of those cases. Com- attempting munity only to do amount of commu- service was ordered two. nity those, unnecessarily service is burdensome one the defendant was re- on Mr. Washington. and required ferred treatment community invoked hours of service after complete 150 civil self-incrimination to decline to answer ninety days pay $315 within following question: you to drop “[I]f defendants were were Eight penalty. sample today, a urine it samples before would be clean or provide ordered to urine imposed. dirty marijuana?” Washington con- was Six defendants sentence imposed tends the and received deferred “negative” tested community community re- additional hours of judgments with no service service retaliation for his refusal to answer posi- Two defendants tested quirement. tive; jail “improper” question “uncharged ten-day one received judg- unproven a deferred conduct.” State contends other received question community proper during hours was sen- ment with 200 service days. tencing drug charge and that completed to be There com- service was within the no order for more than 200 hours of retaliatory. motion court’s discretion and not munity Washington filed a Be- service. analy- fore we frame the Fifth Amendment judicial take notice of the sis, scope we must determine twenty-nine in these orders and files on the summarizing disposi- ruling record motion take cases and data judicial motion notice of other court files. tions. That is submitted with appeal. Judicial Notice. When de A. challenged fense counsel the 250 hours Scope
II. of Review. *6 community retaliatory, sendee sen Washington’s review de novo We judge tencing responded, contrary “To the improperly claim court that ... look at the orders that were entered invoking him for his constitution penalized yesterday, were there several that right See against al self-incrimination. judgments.” range involved deferred 518, Ct., v. Dist. State Iowa 801 N.W.2d the records of obtained twen (Iowa 2011) (reviewing evidence de 517 ty-nine County other Polk District Court Fifth Amend novo on claimed violation of contemporaneous sentencing files with or ment); Harrington, also State v. 805 see of possession ders for a controlled sub (Iowa 2011) 391, (reviewing de N.W.2d 393 stance, offense, and a motion first filed “judicial claim sentence result of novo judicial take notice these records. The vindictiveness”). deny the motion. State resisted. We we un appeal Because resolve Amendment, we not der need taken may Judicial notice be (“Judi do under the Iowa not reach claim 5.20K/) See Iowa R. Evid. appeal. v. Zim County Constitution. See Mitchell any stage cial notice be taken at (Iowa 2012) 1, merman, Sorensen, n. 1 N.W.2d 3 810 State v. 436 proceeding.”); (Iowa 1989) to reach claim under Iowa Con (declining 358, (taking judi N.W.2d 363 pre stitution when court held defendant appeal). permits notice on The rule cial vailed under the United States Constitu adjudicative judicial to take notice of tion). ready “capable of accurate and deter facts by accu mination resort to sources whose Analysis.
III. reasonably questioned.” cannot racy be 5.201(a)-(6). However, R. decide Iowa Evid. We must whether general proper rule is that it is the constitutional line “[t]he crossed judicial take the court to consider or 250 hours of service requiring 656
notice of the records
the same court in a
provides,
States Constitution
person
“No
proceeding
agreement
different
without an
...
compelled
shall be
in any criminal case
of the parties.” Leuchtenmacher v. Farm to be a
against
witness
himself....” A
Co.,
858,
guilty
Bureau Mut. Ins.
861
plea does not waive
(Iowa 1990). Washington argues
Mitchell,
we
self-incrimination at sentencing.
exception
should
here
allow
“because
526
U.S.
119 S.Ct. at
specifically
Indeed,
refer- L.Ed.2d at 435.
protections
a point
compar-
enced the other cases as
the Fifth Amendment
through
continue
argues
ison for
sentence.” The State
imprisonment.
[his]
conviction and
Iowa Dist.
Ct.,
(“The
filings
the other misdemeanor cases
431. Court The Mitchell, thus, does not address whether ing sentencing court not draw that a a defendant’s Fifth Amendment inference from defendant’s si- adverse remain silent whenever infringed is determining lence in the facts the of- his refusal to answer considers rele- at 119 S.Ct. fense. Id. questions vant determining proper Supreme The ad- L.Ed.2d at 438. Court Furthermore, case, sentence. in this retains monished that Government “[t]he seeking a deferred judg- was facts to the proving ment, Nail, burden of relevant a benefit. See State v. sentencing phase (Iowa 2007) cannot cilme at the (describing N.W.2d process enlist the defendant at the as benefit allows conviction). expense privi- the self-incrimination avoid A lege.” argues that Mitch- judge legitimate Id. could have a is case. reason for dispositive disagree. wanting ell of this to know whether Wash- ington marijuana was use continuing to fundamentally distinguish- Mitchell months after his arrest deciding before under federal able. It was decided judgment. whether to defer As the State then in effect in which sentencing system argues: directly the quantity of cocaine determined question related to sen- Court’s thus, and, severity the offense tencing, Washington had whether seen Mitchell’s sentence. ways stopped the error of his involv- used Mitchell’s invocation her himself with controlled substances or rights help a fact resolve him with other around people consuming question relating to the seriousness of had, them. If could he be Here, contrast, crime. Mitchell’s lenient, more secure the belief his already pled guilty had to his good. chances for If reform were Wash- crime, disagreement no and there was ington had himself from a separated Rather, ques- to what it was. the court’s culture, might not the Court be- Washington’s drug use related appropriate. leniency lieve His nearly four months crime to after higher. chances of would be re-offense guilty, potentially which pled he relevant We, thus, that whether a recognize de- exercising sentencing dis- consideration marijuana *8 use continuing fendant is The Court left expressly cretion. Mitchell may be a consideration sen- relevant a open question whether court tencing on a conviction. On the oth- drug the defendant’s silence to deter- consider hand, sense, judge in a a who asks er strict mine to sentencing, other factors relevant asking drug sentencing is for use at or acceptance such as lack of remorse might information that incriminate de- responsibility: fendant. upon bears
Whether silence determi- remorse, sentencing Some courts avoid upon nation of a lack altogether by Fifth issues or acceptance responsibility purposes for Amendment a adjustment dering in submit to urinal provided of the defendant to downward proba for ysis help eligibility § Sentencing of the United States determine 3E1.1 (1998), drug generally tion on See separate question. is a convictions. Guidelines us, Payne, Conditioning M. Propriety It and we no Anne express is not before Probation Submission to on it. view Defendant’s 658 (1991 ques- A.L.R.4th 929 & a defendant’s refusal to answer Testing, 87
Drug Supp.2012). determining Amendment is in tions about offense a urine test is not testi implicated because he or a candidate whether she is suitable Ables, 714 See Hess v. monial evidence. probation” collecting cases from (8th Cir.2013) (“[A] 1048, urine Blunt, F.3d 1053 jurisdictions); other State v. 118 her Fifth drug test would not violate 1, 657, Wash.App. 71 P.3d 662 & n. 13 Amendment self-incrimina (2003) (recognizing that “most courts have samples, tion because urine which are not generally extend Mitchell to declined to evidence, trigger do not testimonial in prohibit inferences from silence the con- A protections.”). Amendment court-or text of enhancements that do not test, however, is a search for dered blood underlying factual involve details of the purposes. Fourth Amendment See Mis cases). collecting crime” and , — —, —, McNeely souri v. U.S. and state courts One situation federal — 1558, 696, 1552, 185 L.Ed.2d S.Ct. repeatedly have addressed since Mitchell (2013). Guzman, In v. State divided may properly is whether the court consid- rejected Supreme Wisconsin participate er a defendant’s refusal to in challenge urinaly Fourth to a (PSI) investigation presentence when sentencing purposes sis ordered for to de example, For defendant. termine whether a defendant convicted of Kennedy, v. United States Sixth given probation. crime should be permits held Mitchell the district Circuit Wis.2d applying sentencing guide- federal (1992). noted, majority “Whether lines to consider the defendant’s refusal drugs convicted defendant continues to use participate psycho- a court-ordered paramount importance or her sexual evaluation and interview that was judge necessarily rehabilitation. A must part of the PSI. 499 F.3d 551-52 have such information to ascertain the re (6th Cir.2007). objected The defendant habilitative needs of one convicted of a to the interview on Fifth Amendment Guzman, drug-related offense.” grounds argued dissented, justices at 454. Two N.W.2d “improperly unwilling- took account of his majority fearing opened the door to a questions. Kennedy, ness” to answer array broad of unconstitutional searches. rejecting F.3d at 551. his Fifth (Heffernan, C.J., See id. at 459 dissenting). challenge, the Sixth Circuit Washington’s appeal does not challenge “plainly noted the con- Rather, urinalysis. court-ordered we are Kennedy’s complete sidered refusal sentencing judge’s confronted with the di testing determining propensity question Washington rect regarding his dangerousness, future rather than in de- drug use. termining facts of the offense.” Id. at Mitchell, appel- After a number of state 552. The Sixth Circuit read Mitchell late decisions have held the *9 narrowly: may court consider the defendant’s silence holding, Given the narrowness of its or in questions refusal to answer determin- See, limit ing simply Mitchell does not the dis- appropriate e.g., the sentence. Hernandez, 353, ability trict court’s to consider a wide State v. 231 Ariz. 295 P.3d 451, variety concerning 454 of “information (Ct.App.2013) (noting agree- its character, jurisdictions background, ment “with those that have and conduct” of concluded in determining appro- Amendment does not the defendant preclude sentence, 3661; § a sentencing priate court from consider- 18 U.S.C. defendant,” Supreme “present- concluded that study of the id. “order and, therefore, 3552(b); to consider Dzul with the choice § [to] admit[] re- cooperate in refusal to for the sponsibility the defendant’s offense which he necessary “to sentence is assessing what pleaded guilty” get lighter from further crimes of protect public “does not violate his 3553(a)(2)(C). defendant,” § id. right against self-incrimination.” Id. at distinguished 885. The Dzul court cases Id. holding sentencing the denial of reduc- courts likewise have supreme State tions could not be based on the defen- allowing as read Mitchell uncharged dant’s refusal to admit to con- noncoop court to consider the defendant’s duct. Id. at 883-84. State, See, e.g., Lee v. eration with PSI. (“It 1133, (Wyo.2001) 36 P.3d We, too, followed McKune in as [PSI] to refuse [defendant’s] rejecting challenge a Fifth Amendment in right to the district court’s sessment and Ct., Iowa District Court. See Iowa Dist. determining in consider such refusal But, at McKune 801 N.W.2d 527-28. both sentence.”). v. Muc State appropriate and Iowa District Court involved de ari, remained silent on ad in guilt refusal to admit his fendant’s during the PSI interview.
vice of counsel crime for which he was sentenced con (2002). 407, A.2d 174 Vt. pro nection a sex-offender treatment with accepted the PSI (“Harkins gram. Id. at 527 does not claim in prison. him to a term and sentenced other, that he will be forced to disclose as- Muscari, A.2d at 415. The Vermont offenses.”). contrast, yet-unknown By sex sen Supreme prison Court affirmed the the Fifth Washington argues at 416-17. The Muscari court tence. Id. violation here arises from his refusal to Mitchell, that, with noted consistent uncharged questions answer con permissibly “considered sentencing court duct, is, marijuana at his use at the as one fac defendant’s silence PSI posses time of rather than his determining whether defendant had tor sion of that at the time of his arrest expressed and re accepted responsibility nearly four months earlier. criminal morse for his violent behavior.” holding also on our caselaw the sen relies State, Similarly, Id. at 416. Dzul v. permitted court is not to consider tencing Supreme Court affirmed divided Nevada unproven uncharged conduct. “It is a probation to a defendant who the denial rule that a well-established guilt charged to admit for the refused additional, un may rely upon during psychosexual the PSI’s offense charges unless proven, unprosecuted Nev. 56 P.3d evaluation. 118 charges to the the defendant admits (2002). court, however, The Dzul 885-86 presented are facts to show the de there authority on whether a split noted State v. fendant committed the offenses.” leniency sentencing court could withhold (Iowa Formara, 720, 725 based on the defendant’s refusal to admit 2002). con improperly “If a district court Dzul, (surveying guilt. 56 P.3d 881-84 unprosecuted unproven addi cases). siders state and federal The Dzul charges, we will remand the case for tional relied on McKune to hold the state Id.; Jose, resentencing.” accord State v. deny benefits to defendants who refuse to (Iowa 2001) (discuss 38, 42-43 of conviction 636 N.W.2d guilt admit the crime *10 sentence). vacate ing showing required to during program. a sex-offender treatment majority Washington argues A the Fifth Amendment Id. at 884-85. of the Nevada facing him to to answer whether A defendant sentencing allowed refuse served. urinalysis sentencing may time of at the confront such choices when he or she dirty” and provide “clean or that is would be asked to his or her version of improperly penalized him the sentencing purposes offense for of a PSI. Like- wise, invoking harsher for that may with a sentence face the same right. right dilemma when offered the of allocu- tion If sentencing hearing. at District Iowa Court did McKune and having defendant does not admit to en- the Fifth not decide whether Amendment conduct, gaged in criminal will the defen- court from consid precludes unlikely appear dant or unremorseful refusal to answer a ering the defendant’s benefit from rehabilitation? uncharged conduct in de question im ciding apply whether to defer We now these to deter- principles But, mine pose other conditions. those deci whether the court violated guidance here Fifth provide Washington’s right sions nevertheless may imposed against regarding choices be self-incrimination. guilt after the is defendant’s established. Application. 2. our de On novo Court, that, In Iowa we District observed review, we find the court im McKune, as in the inmate be con properly penalized Washington for invok
fronted with hard choices. See Iowa Dist.
ing
self-incrimination.
Ct.,
key
The
ques
Our this case is companion weapon and dismissal of the the fact by Washington’s fied drug paraphernalia charges. and Accord- challenge is to the sentence ing to counsel’s defense statement on community Unlike in 250 hours service. record, Court, routinely impose “the doesn’t Iowa District this is not a situation (a any community judg- service on consequence which the determination ments, anywhere complete that the defendant failed to sex- or it from 50 to eligible offender treatment and was not other- argue hours.” The State does not credits) relationship earned-time bore accepted court initially wise. The district in- legitimate penological purpose of the stated, guilty “I’m plea going quiry to an- refused asked judgment.” defer The court next do swer. not see how additional com- Washington’s abili- employment munity positive drug service is related to a far, ty pay penalty. civil So $500 an adverse from test or to inference drawn nothing out of the ordinary. there is answer refusal to whether the test would began when the trouble dirty.” If is still be “clean if be judge he would asked might it using drugs, logical be to refuse if dirty” “clean or he took a test. ground defer that Wash- objected When counsel and assert- defense ington approach, needs more structured Washington’s ed community service seems but additional silent, im- the court to remain reacted purely punitive. Neither the nor the State mediately stating that he “didn’t have Washington’s contends “can defer judgment” hours service serves a red take the conviction.” This raises legitimate penological purpose connected flag. proceedings continued on to his refusal to answer whether he cur- what using marijuana. restating record counsel rently is We need with defense *12 par- just transpired. The The court did not moments earlier. had transpired had positive drug Washington have a test from plea agree- the terms of the ties reiterated any using or admission that he was mari- appro- ment, court conducted and the previ- juana at that The court had time. accepting before plea colloquy priate ously it a grant indicated would deferred plea on Washington’s guilty the [again] The judgment. abruptly court reversed charge possession of the of controlled course and stated it would instead enter a substance, The court reex- first offense. when first conviction asserted Washington’s employment status amined to right decline to the ability pay penalty. civil and dirty” ques- the or answer court’s “clean inquiry, the repeated court then The exchange tion. find that reveals the We drop if Washington, you were “Mr. to punish court’s intent for today, it be clean or sample urine would exercising right. his constitutional When marijuana?” counsel in- dirty for Defense record, challenged, on the the court then answer not to structed judgment, quintu- the but allowed deferred right against self-incrim- again invoked pled community fifty the over the service ination, citing The court at that Mitchell. in by hours the State the recommended for granted Washington’s request point plea agreement. Washing- It would take prior lack of judgment, noting his deferred six, than forty-hour ton more weeks history. lowered criminal The court the discharge community that service. The by penalty “because Mr. reduction in the civil from penalty civil $185 $315 $185 equates ninety-two cents since Washington ha[d] $500 $315 not worked the hour for the extra 200 hours. is per There But, then, imposed court summer.” evidentiary in record support no for light “in community 250 hours service the district court’s assertion that 250 hours of the This was the nature offense.” community “range” service was fifty five-fold increase hours in over previous day. other orders entered agreement. plea any explana- plausible the absence other imposed the 250 hours was because denied proffered, we find that the additional Washington “invoked his constitutional 200 hours was in retaliation for right question.” not to answer the Court’s Washington’s invocation of his constitu- Yet, challenged why “articulate when against tional self-incrimination. Re- necessary the Court feels hours is required. case,” Washington’s court an- Mr. swered, just Washing- “it that Mr. believes IV. Conclusion. ton would benefit ser- reasons, For we foregoing deny vice, community, light would the Washington’s judicial motion to take notice judgment being granted deferred of other court files. hold We matter,” The offered no other penalized improperly despite request by the earlier explanation, Washington for invoking his Amend- specifi- that the the State “Court enunciate We, ment self-incrimination. denying cally granting its reasons therefore, vacate the sentence remand judgment.” court articulat- resentencing. the case for penological purpose ed no rehabilitative or AND SENTENCE VACATED CASE con- for the additional hours REMANDED FOR RESENTENCING. Washington’s possible drug nected to use. cryptic CADY, find the court’s C.J., justices except All concur MANSFIELD, J., explanation unsatisfactory light of what dissent. who CADY, (dissenting). Justice it against Chief wanted to retaliate *13 the defen- refusing dant for deny any admit or I respectfully I dissent. would affirm drug use. The defendant was unemployed judgment the of the district court. at the time of sentencing, possession in of properly judges The law cloaks with a arrest, a firearm at the time of and re- presumption they acted properly all inquiries by buked judge the about his imposition the in a criminal of sentence drugs. current use of There was simply they case when faced with a claim that no direct evidence of Instead, retaliation. improper sentencing used an consider- appear it would the court wanted to make Formaro, 720, ation. v. State very lenient form of punishment, which (Iowa 2002). strong This and venera- provides offenders with an opportunity to presumption only by proof ble is overcome heavy avoid the burden of a record of a improper that an consideration was used conviction, criminal more meaningful by (indicating the court. id. See abuse the offender to promote better successful of discretion will not be found unless the rehabilitation. reviewing court is able to discern the deci- grounds sion was exercised on that were Without direct evidence a retaliatory untenable). clearly by motive sentencing judge, pre- sumption of legality prevail. must When, case, as judge result, district deserves such a as imposed by the district court was does the presumption time-honored given discretion, scope pre within the by the judges performance law sumption legality should shield the sen their work. tencing judge from an inference that an
improper sentencing consideration could MANSFIELD, J., joins this dissent.
have been used. The a right invocation of by under the Fifth Amendment a defen
dant at the time of in response inquiry by
to an any by criminal conduct committed during pendency defendant of the
ease can become the basis of an inference retaliatory sentencing, but it can also be a proper penological sentencing consideration. BAUR, Appellant, R. John Ct., Cf State v. Iowa Dist. . v. (Iowa 2011). Yet, N.W.2d 527-28 court, imposition of a sentence fol FARMS, BAUR INC. and Robert lowing right, the invocation of the Baur, Appellees. F. merely high falls within the of dis range No. 11-0601. cretion does not proof establish of retalia invocation, instead, tion. The remains an Supreme Iowa. uncertain factor the sentence. June 2013. case, In this the district court said it Rehearing July Denied 2013. higher number of service hours a part of the deferred
judgment granted to the defendant be-
cause it felt higher amount of commu-
nity proper, service hours was not because