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State v. Wooten

Court of Appeals of Iowa

December 19, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
EVAN BLAKE WOOTEN, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.

         The 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.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          McDONALD, JUDGE.

         Evan 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.

         In this 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."

         I.

         We 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.

         The 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 felony?
THE DEFENDANT: Yes, sir, I do.
THE COURT: Do you understand that if it's a forcible felony, incarceration would be mandatory on ...

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