                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0492
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MONICA FAGAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.



      A defendant appeals her sentence for robbery in the first degree seeking

application of an ameliorative sentencing provision. CONVICTIONS AFFIRMED;

SENTENCE VACATED IN PART AND REMANDED.



      Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

      Monica Fagan asks to be resentenced based on new legislation. Given the

plain language of that enactment, we agree the district court should have another

opportunity to consider her mandatory minimum sentence.

      Fagan originally faced first-degree murder and first-degree robbery

charges. She accepted a plea offer from the State—admitting guilt on charges of

willful injury causing serious injury, in violation of Iowa Code section 708.4(1)

(2017), and robbery in the first degree, in violation of Iowa Code sections 711.1

and 711.2. Fagan entered her plea in January 2019. At the February sentencing

hearing, the district court imposed a term of twenty-five years in prison with a 70%

mandatory minimum.

      At the time of Fagan’s sentencing, the applicable statute declared a person

convicted of first-degree robbery—among other offenses—“shall be denied parole

or work release unless the person has served at least seven-tenths of the

maximum term of the person’s sentence.” Iowa Code § 902.12(1)(e).

      Several months later, the Iowa General Assembly enacted Senate File 589,

an omnibus criminal bill, which took effect July 1, 2019.       The bill amended

section 902.12 to include the following mandatory-minimum provision:

      A person serving a sentence for a conviction for robbery in the first
      degree in violation of section 711.2 for a conviction that occurs on or
      after July 1, 2018, shall be denied parole or work release until the
      person has served between one-half and seven-tenths of the
      maximum term of the person's sentence as determined under
      section 901.11, subsection 2A.

2019 Iowa Acts ch. 140, § 8 (codified at Iowa Code § 902.12(2A)) (emphasis

added).
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       The same act created another new subsection:

       At the time of sentencing, the court shall determine when a person
       convicted of robbery in the first degree as described in section
       902.12, subsection 2A, shall first become eligible for parole or work
       release within the parameters specified in section 902.12, subsection
       2A, based upon all pertinent information including the person's
       criminal record, a validated risk assessment, and the negative impact
       the offense has had on the victim or other persons.

2019 Iowa Acts ch. 140, § 6 (codified at Iowa Code § 902.11(2A)).

       The new law bestowed discretion on the sentencing court that did not exist

at the time of Fagan’s hearing. Now the sentencing court must set a minimum

term of incarceration between 50 to 70%, considering all the relevant factors. The

amendment applies to Fagan’s conviction which occurred after July 1, 2018.

       On appeal from her guilty plea, Fagan argues the amendments entitle her

to resentencing for the district court to determine her mandatory minimum term

within that 50 to 70% range.1 She asks us to vacate her sentence and remand for

the district court to make that determination.2

       In considering her request for relief, we note the unusual sequence here.

The sentencing court committed no error. It followed the law at the time. Neither

the prosecutor nor defense counsel committed error. And yet, because of the




1 The same omnibus bill limits direct appeal from guilty pleas, but our supreme
court determined that amendment did not apply to cases, like this, that were
pending on July 1, 2019. See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019).
2 Fagan may challenge flaws in her sentencing hearing on direct appeal even

without objecting in the district court. See State v. Lathrop, 781 N.W.2d 288, 293
(Iowa 2010). We review her challenge for the correction of errors at law. State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We likewise review claims of
statutory interpretation for legal error. State v. Williams, 910 N.W.2d 586, 589
(Iowa 2018).
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retroactivity provision enacted by the legislature,3 we agree Fagan should profit

from the potentially ameliorative sentencing provision. See Clayton v. Iowa Dist.

Ct. for Scott County, 907 N.W.2d 824, 828 (Iowa Ct. App. 2017) (“Sentencing is a

legislative function. We afford broad deference to the legislature in setting the

penalties for criminal conduct and in determining when the penalties are to go into

effect.”).

        To interpret these revised sections, we look to the plain language and apply

the statutes as written if they are unambiguous. See State v. Wickes, 910 N.W.2d

554, 571 (Iowa 2018). Without dispute, the unambiguous, plain language of these

amendments allows a person convicted of first-degree robbery after July 1, 2018,

to have the sentencing court determine the appropriate mandatory minimum

between “one-half and seven-tenths of the maximum term of the person’s

sentence.”

        Indeed, the State concedes “the clear language of the above amendments”

appears to apply to Fagan’s case. But the State argues the appeal should be

resolved on other principles. According to the State, “because the sentence


3 This provision setting the effective date of July 1, 2018 is an outlier. The
legislature also amended the penalty for first-degree arson, another felony with a
mandatory minimum. That amendment also grants the sentencing court discretion
to determine a minimum between 50 and 70%. See Iowa Acts ch. 140, § 39
(codified at Iowa Code § 902.12(4)). But the arson amendment applies to
convictions that occur “on or after July 1, 2019.” Id. Despite this difference, the
State does not argue the 2018 reference was a scrivener’s error. See generally
Monge v. Acabbo, No. NNHCV146046516, 2016 WL 7135072, at *6 (Conn. Super.
Ct. Nov. 1, 2016) (“Drafting mistakes undoubtedly occur in the legislative process
as in every other field of writing, and although it plainly would be best in the usual
course to allow the legislature to correct its own mistakes, . . . [t]here is no
prohibition against judicial assistance in this regard, if the error is brought to the
attention of a court in the context of a justiciable case or controversy.”). So we do
not entertain that notion.
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imposed was pursuant to a negotiated plea agreement the amendments should

not be automatically applied in Fagan’s case.” “[T]he record in this case reflects

the State’s intent that in exchange for taking the murder charge carrying a possible

life sentence off the table it was expected that Fagan serve the maximum prison

term for robbery before parole eligibility.”

       But the State offers no authority for the proposition that a negotiated plea

agreement is sacrosanct in this kind of sentencing appeal. The district court was

not bound by the plea agreement. During the plea colloquy, the court asked

Fagan, “Do you . . . understand that the court is not bound by any plea agreements

between you and the county attorney?” Fagan acknowledged she understood.

The court then explained the various sentencing provisions relevant to her two

convictions. And, when it imposed sentence, the court was without discretion to

determine the mandatory minimum for the robbery conviction.

       In her reply brief, Fagan asserts, in accepting the plea agreement, she did

not “waive any right to future relief by the Iowa Legislature.” We agree with that

assertion. “An ameliorative change should be extended to every case in which it

properly can apply.” State v. Wiese, 201 N.W.2d 734, 737 (Iowa 1972) (extending

benefit of ameliorative changes effective between dates of defendant’s offense and

sentencing). And as the State points out, we have given a defendant the benefit

of an ameliorative sentencing statute following vacation of a flawed sentence and

remand for resentencing. See, e.g., State v. Henderson, No. 18-1426, 2019 WL

2872314, at *3 (Iowa Ct. App. July 3, 2019).

       In this unusual circumstance, we believe Fagan may seek the benefit of the

retroactive, ameliorative sentencing statute for her robbery conviction. To find
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otherwise would negate the clear legislative intent to allow district courts to

exercise discretion in imposing mandatory minimum terms for first-degree robbery

convictions occurring on or after July 1, 2018.

       We vacate the portion of the sentencing order setting a mandatory minimum

of seventy percent and remand for the court to determine when Fagan will be

eligible for parole or work release, consistent with Iowa Code section 902.11(2A)

and .12(2A).

       CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND

REMANDED.
