review from the Iowa Court of Appeals.
from the Iowa District Court for Clinton County, Mary Howes,
seeks further review of court of appeals decision affirming
his conviction and sentence.
Shellie L. Knipfer, Assistant Appellate Defender, for
J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, Mike Wolf, County Attorney, and Amanda
Myers, Assistant County Attorney, for appellee.
sentencing court indicates it lacks "wiggle room"
regarding whether to reduce a five-year minimum prison
sentence, should we conclude that the court did not
understand it had discretion to do so and thus failed to
exercise its discretion? We reach that conclusion on this
record and remand for resentencing.
Background Facts and Proceedings.
could find these facts from the trial testimony. Dairramey
Moore and a companion went to a home in Clinton to collect
beer money owed them by an occupant. The home was equipped
with surveillance cameras, and a witness placed Moore on the
east side of the house. Shots rang out, and Moore was shown
on video running away with his right hand in his pocket. The
physical evidence showed shots had been fired from the east
side into the home and from inside the house out towards that
side. Moore was charged with (1) intimidation with a
dangerous weapon, (2) going armed with intent, and (3)
reckless use of a firearm. A jury found Moore guilty of the
first and third counts.
sentencing hearing, the State requested a sentence of
incarceration up to ten years on count one (intimidation with
a dangerous weapon). The State noted that count one is a
forcible felony with incarceration required under Iowa Code
section 907.3 (2018) and that section 902.7 imposed a minimum
sentence of five years. The State noted, "[T]he
Defendant stood outside of a residence in a neighborhood and
shot inside of the house where people were present, so the
State certainly feels that incarceration would be
appropriate." The court then elicited defense
counsel's response, as follows:
THE COURT: Mr. Kroeger, what would you like to say on Mr.
MR. KROEGER: Well, we don't have too much wiggle room
THE COURT: I'm sorry, what?
MR. KROEGER: We don't have too much wiggle ...