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State v. Werner

Court of Appeals of Iowa

August 7, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
WILLIE CLAY WERNER, Defendant-Appellant.

          Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.

         The defendant appeals from his sentences for five counts of sexual abuse in the second degree and two counts of sexual abuse in the third degree.

          Mark C. Smith, State Appellate Defender, (until withdrawal), and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and May, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         Following a jury trial, Willie Werner was convicted of five counts of sexual abuse in the second degree and two counts of sexual abuse in the third degree.[1]In July 2016, he was sentenced to a total term of incarceration not to exceed sixty years. Mittimus issued immediately. The court confirmed that Werner was not eligible for an appeal bond. Werner appealed, and our court affirmed his convictions but vacated his sentences, finding the trial court abused its discretion in mentioning the perception of the victims as a sentencing consideration. State v. Werner, No. 16-1315, 2017 WL 2684348, at *3-4 (Iowa Ct. App. June 21, 2017).

         At the 2018 resentencing hearing, Werner objected to the use of the presentence investigation (PSI) report that had been prepared for his initial 2016 sentencing, claiming it was outdated and asking for a continuance so a new PSI report could be completed. The State responded, maintaining Werner could discuss any changes or updates since the initial report during his time for allocution and noting the State had "nothing to say that [Werner] has done anything wrong in prison." The court denied Werner's request for a continuance and for an updated PSI report, reasoning that the request was not made until the time of the scheduled resentencing hearing and the 2016 PSI report "adequately states the factors the court is to consider for purposes of sentencing."

         In imposing sentence, the court stated:

I think the sentence imposed by the court was appropriate. I don't think there's any real need to belabor that except to say that in view of the number of victims, [Werner's] lack of remorse, the impact of the offenses on the victims, the continuing nature of the crimes, that that was the appropriate sentence.
So I will reimpose that sentence at this time . . . .

         The court sentenced Werner to twenty-five-year terms of imprisonment for each of the five counts of second-degree sexual abuse and ten-year terms for both counts of third-degree sexual abuse. It listed each count and the corresponding sentence separately then stated, "The court decides to run one count of each [of the three] victim[s] consecutively and the remainder of the counts concurrently." The court ordered two of the twenty-five-year terms and one of the ten-year terms to be served consecutively, for a total term of imprisonment not to exceed sixty years, with all other sentences ordered to be served concurrently.

         On appeal, Werner argues the resentencing court abused its discretion by (1) using an outdated PSI report, (2) imposing consecutive sentences without stating adequate reasons on the record, and (3) ordering him to reimburse the state for attorney fees without determining the amount of restitution or his ability to pay. "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000) (citation omitted).

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