                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1154
                                Filed April 8, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES LEE MOORE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



       James Moore appeals his sentence following a guilty plea to assault

causing bodily injury. SENTENCE VACATED AND CASE REMANDED FOR

RESENTENCING.



       Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, Michael J. Walton, County Attorney, and Will Ripley, Assistant County

Attorney, for appellee.



       Considered by Potterfield, P.J., Bower, J., and Miller, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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POTTERFIELD, P.J.

       James Moore appeals his sentence following a guilty plea to assault

causing bodily injury.

       I. Factual and Procedural Background

       Moore was involved in an altercation with a clerk in a grocery store on

August 5, 2012. The State charged him with two counts of assault causing bodily

injury, in violation of Iowa Code section 708.2(2) (2011).1 The parties reached a

plea agreement in which Moore would plead guilty to the first count and the State

would dismiss the second. The State agreed to recommend a sentence of 360

days in county jail, all but 30 days suspended, and a $315 fine. The district court

accepted Moore’s written guilty plea and sentenced him according to the State’s

recommendation. Moore appealed because the district court failed to afford him

his right to allocution before imposing its sentence, and this court remanded for

resentencing. See State v. Moore, No. 13-0223, 2014 WL 69541, at *2–3 (Iowa

Ct. App. Jan. 9, 2014).

       The district court conducted a resentencing hearing on May 22, 2014.

Moore’s counsel issued statements regarding positive changes in Moore’s life

since the August 5, 2012 incident.         The State’s counsel again made the

recommendation it agreed upon during plea negotiations.                The hearing

proceeded:




1
  “A person who commits an assault, as defined in section 708.1, and who causes bodily
injury . . . is guilty of a serious misdemeanor.” Iowa Code § 708.2(2). Iowa Code
section 708.1 defines assault as “[a]ny act which is intended to cause pain or injury
to . . . another, coupled with the apparent ability to execute the act.”
                                       3


              The Court: So the Court would, pursuant to your plea
      agreement, and pursuant to your plea of guilty to Assault Resulting
      in Bodily Injury, in violation of Iowa Code Section 708.2(2) and as
      provided by Section 903.1 of the Iowa Criminal Code, it is the
      judgment and sentence of the Court that you be and are hereby
      committed to the custody of the Sheriff of Scott County for a period
      of 360 days; all but 15 of that are suspended. . . .
              ....
              The Court: [Y]ou asked for a delay in mittimus, is that
      correct?
              Moore’s Counsel: Yes, your Honor. Could that be until the
      7th of June?
              The Court: No. I’ll entertain a week or so, but not June 7th.
              Moore’s Counsel: He does have . . . two matters that are
      unsettled with the courts; one of them is here in Scott County, the
      other one is in Rock Island. . . .
              The Court: Were they committed after this offense?
              ....
              State’s Counsel: Your Honor, I didn’t mention these, as they
      are at this moment unresolved.
              The Court: Well, that may be, but it certainly goes to my
      sentence. I’m not going to—I’m going to rescind what I just did, I’m
      going to continue this until those charges are resolved. Once
      they’re resolved, then I’ll sentence him.

Sentencing was continued until July 3, 2014.

      At the July 3 resentencing hearing, Moore’s counsel again made

statements regarding the positive changes in Moore’s life since the incident.

Counsel continued:

              Moore’s Counsel: I do want to let the Court know the last
      time that we were here, we had believed that he had some charges
      that were going to be resolved by now; however, Mr. Moore reports
      to me that he has a charge here in Scott County that is an assault
      charge—
              The Court: Is that a pending charge?
              Moore’s Counsel: It is a pending charge, Your Honor.
              The Court: Then the Court does not consider that as part of
      the sentencing.
              Moore’s Counsel: I understand that, Your Honor; however,
      last time I think we were here, we didn’t want to have a resolution
      here until we found out what was going to happen with those. The
      charge still exists out there, just so you know.
                                             4


              The Court: Again, I want to make it clear I’m not considering
       that as part of the sentencing.
              Moore’s Counsel: Understood, Your Honor.

       The district court went on to sentence Moore to 360 days in county jail

with all but 30 days suspended. It denied a request to delay mittimus for one

week to allow Moore to make arrangements at his workplace. Moore served the

time in county jail and received time off for good behavior pursuant to Iowa Code

section 356.46.2

       Moore appeals his sentence, claiming the district court had no authority to

“rescind” its sentence at the May 22, 2014 hearing.3 He also claims the district

court abused its discretion by considering unproven offenses as a factor in its

sentencing determination.

       II. Mootness

       The State argues Moore’s appeal is moot “because his requested

remedies do not have a practical legal effect.” It is a well-established principle of

judicial restraint that “courts do not decide cases when the underlying

controversy is moot.” Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005). “[A]n

appeal is deemed moot if the issue becomes nonexistent or academic and,

consequently, no longer involves a justiciable controversy.” State v. Hernandez-

Lopez, 639 N.W.2d 226, 234 (Iowa 2002).

2
  Iowa Code section 356.46 provides in part, “Every prisoner in the county jail may . . . at
the discretion of the sentencing judge, receive a reduction of sentence in an amount to
be determined by the judge . . . .”
3
  If error is not preserved on this issue, Moore argues in the alternative he suffered from
ineffective assistance because his counsel failed to preserve error for review. However,
“errors in sentencing may be challenged on direct appeal even in the absence of an
objection in the district court.” State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010). We
therefore consider the merits of the claim and do not consider the alternative ineffective-
assistance claim.
                                          5


       Moore has discharged the non-suspended portion of his sentence by

serving time in jail and receiving time off for good behavior.          However, the

remainder of his sentence was suspended, and a suspended sentence is

accompanied by probation.4 The period of probation for a misdemeanor “shall

not be less than one year.” Iowa Code § 907.7(2). This appeal reaches us

within the probationary period, and there is no indication in the record the

mandatory probationary period has been reduced or Moore has been

discharged.

       One of Moore’s requested remedies is that we vacate his sentence and

remand for resentencing before a different judge. Moore’s assault conviction is a

serious misdemeanor, and the sentencing judge has broad discretion in

sentencing.5   If resentencing occurs, Moore may no longer be sentenced to

imprisonment or subject to probation, whereas he remains subject to probation

and the potential for revocation of that probation under his current sentence.

Since there remains a justiciable controversy, we decline to dismiss Moore’s

claims on appeal as moot.6


4
   Iowa Code section 907.3(3) provides, “[T]he court may suspend the sentence and
place the defendant on probation . . . .”
5
   “For a serious misdemeanor, there shall be a fine of at least three hundred fifteen
dollars but not to exceed one thousand eight hundred seventy-five dollars. In addition,
the court may also order imprisonment not to exceed one year.” Iowa Code
§ 903.1(1)(b) (emphasis added).
6
   Even if we considered Moore’s issues moot, we could proceed to the merits because
there is an exception to the mootness doctrine for “issues of broad public importance
likely to recur.” Hernandez-Lopez, 639 N.W.2d at 234. There are public implications of
a case like Moore’s in which a court may have relied upon impermissible factors in
sentencing a defendant to an incarceration term that is shorter than the time needed to
complete the appellate process. These circumstances are likely to recur and would
otherwise evade appellate review. See id. We therefore may consider the merits of
Moore’s claims irrespective of their mootness.
                                             6


       III. Standard of Review

       We review claims of error in sentencing for correction of errors at law.

See Iowa R. App. P. 6.907; State v. Valin, 724 N.W.2d 440, 443–44 (Iowa 2006).

Where, as here, the sentence imposed is within the statutory limits, “it is

necessary to determine whether legal error occurred because the district court

abused its discretion.” Valin, 724 N.W.2d at 444.

       IV. Discussion

       Moore first claims the district court had no authority to “rescind” its original

15-day sentence. We disagree. “The oral sentence pronounced by the court is

not the judgment of the court; the record in the judgment docket is proof that a

judgment is entered and is the enforceable judgment.”7 State v. Suchanek, 326

N.W.2d 263, 265 (Iowa 1982). In this sense, the 15-day sentence was never

formally the judgment of the court. Because no written order was issued, the

district court did not “rescind” a final enforceable judgment at the May 22 hearing.

The district court was not procedurally bound by its abandoned intent to suspend

all but fifteen days of Moore’s sentence as expressed at the May 22 hearing.

Moore is not entitled to any remedy based on this argument.

       Moore’s second argument is that the district court relied upon

impermissible considerations to make its sentencing determination at the July 3

resentencing hearing. “‘It is a well-established rule that a sentencing court may
7
  We note that a discrepancy between the oral pronouncement of sentence and the
written judgment is resolved in the favor of the oral pronouncement, but only if doing so
“harmonize[s] the intent of the court with the written judgment.” State v. Hess, 533
N.W.2d 525, 528 (Iowa 1995) (citation omitted). There is no clerical error in this case
giving rise to an uncertainty in the court’s intent as in Hess. Rather, it is clear from the
record that it was not the district court’s intent to issue or enter a written sentencing
order at the close of the May 22 hearing.
                                         7


not rely upon additional, unproven, and unprosecuted charges unless the

defendant admits to the charges or there are facts presented to show the

defendant committed the offenses.’” State v. Washington, 832 N.W.2d 650, 659

(Iowa 2013) (quoting State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002)). “[I]f a

court in determining a sentence uses any improper consideration, resentencing

of the defendant is required, even if it was merely a secondary consideration.”

State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014). We presume the district court

rendered its sentencing decisions based on permissible factors, and it is Moore’s

burden to affirmatively show reliance on improper evidence. Washington, 832

N.W.2d at 661.

       Moore argues the district court impermissibly considered his pending

charges in making its sentencing determination.        He notes the district court

initially intended to suspend all but fifteen days of his sentence, continued the

sentencing when it learned he had a pending charge, proceeded with

resentencing on July 3 despite the continued pending status of the charge, and

imposed a harsher penalty despite no changes in the case’s circumstances save

the district court’s knowledge of the pending charge. The State counters the

district court explicitly stated it did not consider the pending charge at the July 3

hearing and relied instead upon the “gravity of that situation” leading to the

assault conviction.

       Because the only circumstance that changed between the district court’s

15-day sentence and 30-day sentence was its knowledge of Moore’s pending

charge, we find the district court relied on impermissible factors to make its

sentencing determination. The court’s reaction to learning of Moore’s pending
                                        8


charges at the May 22 hearing indicates that its determination of the proper

sentence changed upon so learning. The district court offered no other factor,

and there is none in the record, that accounts for the increased sentence

between the original 15-day pronouncement and the following 30-day sentence.

      The court’s express disclaimer of consideration of the pending charge at

the July 3 hearing, though important to our analysis, is not dispositive under our

supreme court’s holding in Lovell.

      [A]lthough 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.

Lovell, 857 N.W.2d at 243 (citation and internal quotation marks omitted). Our

courts are especially mindful of “the integrity of our judicial system from the

appearance of impropriety” in regard to the consideration of impermissible factors

in sentencing. Id. To comport with Lovell, we must vacate Moore’s sentence

and remand for resentencing before a different judge.

      SENTENCE         VACATED         AND      CASE       REMANDED          FOR

RESENTENCING.
