IN THE COURT OF APPEALS OF IOWA

No. 14-1154

Filed April 8, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JAMES LEE MOORE,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark J. Smith, 

Judge.

James Moore appeals his sentence following a guilty plea to assault 

causing bodily injury. SENTENCE VACATED AND CASE REMANDED FOR 

RESENTENCING.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney 

General, Michael J. Walton, County Attorney, and Will Ripley, Assistant County 

Attorney, for appellee.

Considered by Potterfield, P.J., Bower, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2

POTTERFIELD, P.J.

James Moore appeals his sentence following a guilty plea to assault 

causing bodily injury.

I. Factual and Procedural Background

Moore was involved in an altercation with a clerk in a grocery store on 

August 5, 2012. The State charged him with two counts of assault causing bodily 

injury, in violation of Iowa Code section 708.2(2) (2011).1 The parties reached a 

plea agreement in which Moore would plead guilty to the first count and the State 

would dismiss the second. The State agreed to recommend a sentence of 360 

days in county jail, all but 30 days suspended, and a $315 fine. The district court 

accepted Moore’s written guilty plea and sentenced him according to the State’s 

recommendation. Moore appealed because the district court failed to afford him 

his right to allocution before imposing its sentence, and this court remanded for 

resentencing. See State v. Moore, No. 13-0223, 2014 WL 69541, at *2–3 (Iowa 

Ct. App. Jan. 9, 2014).

The district court conducted a resentencing hearing on May 22, 2014. 

Moore’s counsel issued statements regarding positive changes in Moore’s life 

since the August 5, 2012 incident. The State’s counsel again made the 

recommendation it agreed upon during plea negotiations. The hearing 

proceeded:

 

1

“A person who commits an assault, as defined in section 708.1, and who causes bodily 

injury . . . is guilty of a serious misdemeanor.” Iowa Code § 708.2(2). Iowa Code 

section 708.1 defines assault as “[a]ny act which is intended to cause pain or injury 

to . . . another, coupled with the apparent ability to execute the act.”
3

The Court: So the Court would, pursuant to your plea 

agreement, and pursuant to your plea of guilty to Assault Resulting 

in Bodily Injury, in violation of Iowa Code Section 708.2(2) and as 

provided by Section 903.1 of the Iowa Criminal Code, it is the 

judgment and sentence of the Court that you be and are hereby 

committed to the custody of the Sheriff of Scott County for a period 

of 360 days; all but 15 of that are suspended. . . .

. . . .

The Court: [Y]ou asked for a delay in mittimus, is that 

correct?

Moore’s Counsel: Yes, your Honor. Could that be until the 

7th of June?

The Court: No. I’ll entertain a week or so, but not June 7th.

Moore’s Counsel: He does have . . . two matters that are 

unsettled with the courts; one of them is here in Scott County, the 

other one is in Rock Island. . . .

The Court: Were they committed after this offense?

. . . .

State’s Counsel: Your Honor, I didn’t mention these, as they 

are at this moment unresolved.

The Court: Well, that may be, but it certainly goes to my 

sentence. I’m not going to—I’m going to rescind what I just did, I’m 

going to continue this until those charges are resolved. Once 

they’re resolved, then I’ll sentence him.

Sentencing was continued until July 3, 2014.

At the July 3 resentencing hearing, Moore’s counsel again made 

statements regarding the positive changes in Moore’s life since the incident. 

Counsel continued:

Moore’s Counsel: I do want to let the Court know the last 

time that we were here, we had believed that he had some charges 

that were going to be resolved by now; however, Mr. Moore reports 

to me that he has a charge here in Scott County that is an assault 

charge—

The Court: Is that a pending charge?

Moore’s Counsel: It is a pending charge, Your Honor.

The Court: Then the Court does not consider that as part of 

the sentencing.

Moore’s Counsel: I understand that, Your Honor; however, 

last time I think we were here, we didn’t want to have a resolution 

here until we found out what was going to happen with those. The 

charge still exists out there, just so you know.
4

The Court: Again, I want to make it clear I’m not considering 

that as part of the sentencing.

Moore’s Counsel: Understood, Your Honor.

The district court went on to sentence Moore to 360 days in county jail 

with all but 30 days suspended. It denied a request to delay mittimus for one 

week to allow Moore to make arrangements at his workplace. Moore served the 

time in county jail and received time off for good behavior pursuant to Iowa Code 

section 356.46.2

Moore appeals his sentence, claiming the district court had no authority to 

“rescind” its sentence at the May 22, 2014 hearing.3 He also claims the district 

court abused its discretion by considering unproven offenses as a factor in its 

sentencing determination.

II. Mootness

The State argues Moore’s appeal is moot “because his requested 

remedies do not have a practical legal effect.” It is a well-established principle of 

judicial restraint that “courts do not decide cases when the underlying 

controversy is moot.” Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005). “[A]n 

appeal is deemed moot if the issue becomes nonexistent or academic and, 

consequently, no longer involves a justiciable controversy.” State v. HernandezLopez, 639 N.W.2d 226, 234 (Iowa 2002).

 

2

Iowa Code section 356.46 provides in part, “Every prisoner in the county jail may . . . at 

the discretion of the sentencing judge, receive a reduction of sentence in an amount to 

be determined by the judge . . . .”

3

If error is not preserved on this issue, Moore argues in the alternative he suffered from 

ineffective assistance because his counsel failed to preserve error for review. However, 

“errors in sentencing may be challenged on direct appeal even in the absence of an 

objection in the district court.” State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010). We 

therefore consider the merits of the claim and do not consider the alternative ineffectiveassistance claim.
5

Moore has discharged the non-suspended portion of his sentence by 

serving time in jail and receiving time off for good behavior. However, the 

remainder of his sentence was suspended, and a suspended sentence is 

accompanied by probation.4 The period of probation for a misdemeanor “shall 

not be less than one year.” Iowa Code § 907.7(2). This appeal reaches us 

within the probationary period, and there is no indication in the record the 

mandatory probationary period has been reduced or Moore has been 

discharged.

One of Moore’s requested remedies is that we vacate his sentence and 

remand for resentencing before a different judge. Moore’s assault conviction is a 

serious misdemeanor, and the sentencing judge has broad discretion in 

sentencing.5 If resentencing occurs, Moore may no longer be sentenced to 

imprisonment or subject to probation, whereas he remains subject to probation

and the potential for revocation of that probation under his current sentence. 

Since there remains a justiciable controversy, we decline to dismiss Moore’s 

claims on appeal as moot.6

 

4

Iowa Code section 907.3(3) provides, “[T]he court may suspend the sentence and 

place the defendant on probation . . . .” 

5

“For a serious misdemeanor, there shall be a fine of at least three hundred fifteen 

dollars but not to exceed one thousand eight hundred seventy-five dollars. In addition, 

the court may also order imprisonment not to exceed one year.” Iowa Code 

§ 903.1(1)(b) (emphasis added).

6 Even if we considered Moore’s issues moot, we could proceed to the merits because 

there is an exception to the mootness doctrine for “issues of broad public importance 

likely to recur.” Hernandez-Lopez, 639 N.W.2d at 234. There are public implications of 

a case like Moore’s in which a court may have relied upon impermissible factors in 

sentencing a defendant to an incarceration term that is shorter than the time needed to 

complete the appellate process. These circumstances are likely to recur and would 

otherwise evade appellate review. See id. We therefore may consider the merits of 

Moore’s claims irrespective of their mootness.
6

III. Standard of Review

We review claims of error in sentencing for correction of errors at law. 

See Iowa R. App. P. 6.907; State v. Valin, 724 N.W.2d 440, 443–44 (Iowa 2006). 

Where, as here, the sentence imposed is within the statutory limits, “it is 

necessary to determine whether legal error occurred because the district court 

abused its discretion.” Valin, 724 N.W.2d at 444.

IV. Discussion

Moore first claims the district court had no authority to “rescind” its original 

15-day sentence. We disagree. “The oral sentence pronounced by the court is 

not the judgment of the court; the record in the judgment docket is proof that a 

judgment is entered and is the enforceable judgment.”7 State v. Suchanek, 326 

N.W.2d 263, 265 (Iowa 1982). In this sense, the 15-day sentence was never 

formally the judgment of the court. Because no written order was issued, the 

district court did not “rescind” a final enforceable judgment at the May 22 hearing. 

The district court was not procedurally bound by its abandoned intent to suspend 

all but fifteen days of Moore’s sentence as expressed at the May 22 hearing. 

Moore is not entitled to any remedy based on this argument.

Moore’s second argument is that the district court relied upon 

impermissible considerations to make its sentencing determination at the July 3 

resentencing hearing. “‘It is a well-established rule that a sentencing court may 

 

7 We note that a discrepancy between the oral pronouncement of sentence and the 

written judgment is resolved in the favor of the oral pronouncement, but only if doing so 

“harmonize[s] the intent of the court with the written judgment.” State v. Hess, 533 

N.W.2d 525, 528 (Iowa 1995) (citation omitted). There is no clerical error in this case 

giving rise to an uncertainty in the court’s intent as in Hess. Rather, it is clear from the 

record that it was not the district court’s intent to issue or enter a written sentencing 

order at the close of the May 22 hearing.
7

not rely upon additional, unproven, and unprosecuted charges unless the 

defendant admits to the charges or there are facts presented to show the 

defendant committed the offenses.’” State v. Washington, 832 N.W.2d 650, 659 

(Iowa 2013) (quoting State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002)). “[I]f a 

court in determining a sentence uses any improper consideration, resentencing 

of the defendant is required, even if it was merely a secondary consideration.” 

State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014). We presume the district court 

rendered its sentencing decisions based on permissible factors, and it is Moore’s 

burden to affirmatively show reliance on improper evidence. Washington, 832 

N.W.2d at 661.

Moore argues the district court impermissibly considered his pending 

charges in making its sentencing determination. He notes the district court 

initially intended to suspend all but fifteen days of his sentence, continued the 

sentencing when it learned he had a pending charge, proceeded with 

resentencing on July 3 despite the continued pending status of the charge, and 

imposed a harsher penalty despite no changes in the case’s circumstances save 

the district court’s knowledge of the pending charge. The State counters the 

district court explicitly stated it did not consider the pending charge at the July 3 

hearing and relied instead upon the “gravity of that situation” leading to the 

assault conviction.

Because the only circumstance that changed between the district court’s 

15-day sentence and 30-day sentence was its knowledge of Moore’s pending 

charge, we find the district court relied on impermissible factors to make its 

sentencing determination. The court’s reaction to learning of Moore’s pending 
8

charges at the May 22 hearing indicates that its determination of the proper 

sentence changed upon so learning. The district court offered no other factor, 

and there is none in the record, that accounts for the increased sentence

between the original 15-day pronouncement and the following 30-day sentence.

The court’s express disclaimer of consideration of the pending charge at 

the July 3 hearing, though important to our analysis, is not dispositive under our 

supreme court’s holding in Lovell.

[A]lthough the district court attempted to disclaim the reference to 

the impermissible sentencing factor, we cannot speculate about the 

weight the sentencing court gave to these unknown circumstances. 

Since we cannot evaluate their influence, we must strike down the 

sentence.

Lovell, 857 N.W.2d at 243 (citation and internal quotation marks omitted). Our 

courts are especially mindful of “the integrity of our judicial system from the 

appearance of impropriety” in regard to the consideration of impermissible factors 

in sentencing. Id. To comport with Lovell, we must vacate Moore’s sentence 

and remand for resentencing before a different judge.

SENTENCE VACATED AND CASE REMANDED FOR 

RESENTENCING.