Appeal from the Iowa District Court for Polk County, William A. Price, Judge.
Defendant appeals sentence alleging district court improperly penalized him for invoking his constitutional right against self-incrimination.
Robert G. Rehkemper III of Gourley, Rehkemper & Lindholm, PLC, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and Kevin D. Hathaway, Assistant County Attorney, for appellee.
Matthew J. Clair-Femrite, Student Legal Intern, and Robert R. Rigg, Supervising Attorney, Des Moines, for amicus curiae Drake University Legal Clinic, Criminal Defense Program.
Gary D. Dickey, Jr. of Dickey & Campbell Law Firm, P.L.C., Des Moines, for amicus curiae ACLU of Iowa.
In this appeal, we must decide whether the sentencing court improperly penalized the defendant for invoking his Fifth Amendment right against self-incrimination. We conclude that when the district court asks the defendant a question at sentencing and then imposes an adverse sentencing consequence unrelated to any legitimate penological purpose of the inquiry because the defendant invoked his Fifth Amendment rights, the defendant has been improperly penalized.
Kenneth R. Washington III pled guilty to possession of marijuana. The State agreed to jointly recommend a deferred judgment with fifty hours of community service, one year of probation, and a $500 civil penalty. At the hearing on his plea and sentencing, the court (initially off the record) first indicated it would defer judgment, but then threatened to convict Washington immediately after he declined, on advice of counsel, to answer the court's question of whether he would test positive if given a drug test. The court repeated the drug-test inquiry on the record. Defense counsel again invoked Washington's right to remain silent. The court deferred judgment, but imposed 250 hours of community service and a $350 civil penalty.
We granted Washington's application for discretionary review and retained the appeal. On our de novo review, we find that by imposing 250 hours of community service unconnected to a penological goal related to the court's inquiry, such as drug treatment, the sentencing court improperly penalized Washington for invoking his Fifth Amendment right against self-incrimination. We vacate the sentence and remand the case for resentencing.
I. Background Facts and Proceedings.
On October 6, 2011, Officer Jeremy Siepker was on patrol in Windsor Heights and, just after midnight, pulled over a Dodge Neon with a burned-out brake light. While speaking with the twenty-one-year-old driver, Washington, Siepker smelled "a strong odor of marijuana coming from inside the vehicle." Siepker told Washington to step out of the car and asked if he could search him. Washington consented to the search. Siepker found two plastic bags of what Washington admitted was marijuana in his pockets along with a metal marijuana pipe and a digital scale. Siepker next found small plastic bags with marijuana residue and a loaded revolver in the trunk of Washington's car. Washington admitted the handgun belonged to him. Washington was arrested and later charged by trial information with carrying a weapon in violation of Iowa Code section 724.4 (2011), an aggravated misdemeanor, and possession of a controlled substance (marijuana) in violation of Iowa Code section 124.401(5), a serious misdemeanor. He also was charged with possession of drug paraphernalia in violation of section 124.414, a simple misdemeanor.
Washington completed a court-ordered substance-abuse evaluation and reached a plea agreement with the prosecution. He agreed to plead guilty to possession of marijuana in exchange for dismissal of the weapons and drug paraphernalia charges. The State agreed to jointly recommend deferred judgment with fifty hours of community service, one year of probation, and a $500 civil penalty. The plea agreement was not conditioned on the court's acceptance of those sentencing requests. On February 3, 2012, Washington appeared with counsel, Robert Rehkemper, to enter his guilty plea and for sentencing.
The proceedings began off the record. According to Rehkemper's on-the-record recapitulation of the off-the-record discussion minutes later, the court had accepted the guilty plea and said, "I'm going to defer judgment." The court then explored Washington's employment status and ability to pay the $500 penalty. Matters suddenly became tense when the sentencing court, still off the record, asked Washington if he would be "clean or dirty" if required to drop a urinalysis. Rehkemper's account of what happened next is as follows:
I stepped in and informed the Court I did not believe it was appropriate for the Court to inquire that of Mr. Washington. And in any event, Mr. Washington would exercise his Fifth Amendment right to remain silent, which he still retains through sentencing.
At that point, the Court told Mr. Washington and counsel that that's fine, he didn't have to defer judgment, he can take the conviction.
Rehkemper asked for a court reporter to make a record. The proceedings continued on the record. After stating what had just transpired off the record, Rehkemper elaborated on his legal argument that Washington had a right to remain silent at sentencing under the Fifth Amendment and "the corresponding section of the Iowa Constitution." Rehkemper, referring to United States v. Mitchell, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), argued that a "court may not make an adverse inference of an individual's exercise of his Fifth Amendment rights at sentencing." Rehkemper asserted that the district court
had all but accepted [the plea agreement], and it appears the only reason why the Court would not defer judgment, as to Mr. Washington, would be his election of not to answer the question of whether or not he would drop dirty or clean today.
The court, without otherwise disputing Rehkemper's description of what had transpired off the record, stated no plea had been accepted yet. At the court's direction, they started over with the plea process on the record.
During the ensuing colloquy, the parties reiterated the plea agreement. The court admonished Washington that the plea agreement was not binding on the court, and he could be sentenced to up to 180 days in jail and a $1000 fine. Washington elected to proceed with his guilty plea, which the court accepted. Washington also elected to proceed with sentencing at that time. Counsel and Washington declined to make any further statement before the court imposed sentence. The court elicited from Washington that he had been unemployed since August and had never received a deferred judgment. Then matters became tense again:
THE COURT: Mr. Washington, if you were to drop a urine sample today, would it be clean or dirty for marijuana?
MR. REHKEMPER: Your Honor, at this time I'm going to instruct my client not to answer that question and invoke his constitutional right against self-incrimination under the Fifth Amendment [and] the corresponding section of the Iowa Constitution.
THE COURT: Okay. What's the State's position?
MR. HATHAWAY: Your Honor, I would simply ask that if the Court—it's certainly within the Court's discretion, whether or not to impose—or to grant a deferred judgment in this case. I would simply ask that the Court enunciate specifically its reasons for granting or denying a deferred judgment, in any event.
MR. REHKEMPER: And, Your Honor, I can provide the Court with a copy of Mitchell versus United States, if the Court would like to review it.
THE COURT: All right. Mr. Washington, are you requesting a deferred judgment?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you concur with your client's request, ...