from the Iowa District Court for Scott County, Joel W.
defendant challenges his sentences for attempt to disarm a
peace officer of a dangerous weapon and assault on persons
engaged in certain occupations. SENTENCE AFFIRMED IN
PART, VACATED IN PART, AND REMANDED.
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Zachary Miller, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
Wooten pleaded guilty to attempt to disarm a peace officer of
a dangerous weapon, in violation of Iowa Code section
708.13(2) (2016), and assault on persons engaged in certain
occupations, in violation of Iowa Code section 708.3A(3). The
district court sentenced Wooten to indeterminate terms of
incarceration not to exceed five years for the first offense
and two years for the second offense, said sentences to run
concurrent to each other.
direct appeal, Wooten raises three challenges to his
sentences. First, he contends the district court erroneously
concluded that attempt to disarm a peace officer was a
forcible felony requiring imprisonment. Second, Wooten argues
the district court considered an impermissible factor in
imposing sentence. Specifically, Wooten argues the district
court impermissibly considered the sentencing recommendation
of the presentence investigation (PSI) report writer. Third,
Wooten argues the court erred in "ordering appellate
attorney fees to be assessed in their entirety unless [he]
filed a request for hearing on the issue of his reasonable
ability to pay."
first address Wooten's claim that the district court
erroneously concluded that attempt to disarm a peace officer
of a dangerous weapon was a forcible felony. "A
'forcible felony' is any felonious child
endangerment, assault, murder, sexual abuse, kidnapping,
robbery, human trafficking, arson in the first degree, or
burglary in the first degree." Iowa Code §
702.11(1). The district court may not defer judgment, defer
sentence, or suspend sentence following conviction for a
forcible felony. See Iowa Code § 907.3. In
other words, a term of incarceration is mandatory following
conviction of a forcible felony.
question of whether the offense was a forcible felony was
briefed and argued in the district court. The district court
flagged the issue at the time of Wooten's guilty plea:
THE COURT: Right, and I want to discuss that a little bit.
Mr. Wooten, do you understand that it's an open
question as to whether or not count 1 may be a forcible
THE DEFENDANT: Yes, sir, I do.
THE COURT: Do you understand that if it's a forcible
felony, incarceration would be mandatory on ...