IN THE COURT OF APPEALS OF IOWA

No. 22-0024

Filed February 8, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

PETER WILLIAM TRIERVIELER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi 

Ackley, Judge.

Peter Triervieler appeals from his sentences following his guilty pleas to 

child endangerment, domestic abuse assault, and operating while intoxicated. 

SENTENCES VACATED AND REMANDED FOR RESENTENCING.

Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant 

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Linda J. Hines, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., Ahlers, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2023).
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AHLERS, Judge.

Pursuant to a plea agreement resolving three cases, Peter Triervieler 

pleaded guilty to: (1) child endangerment resulting in bodily injury, a class “D” 

felony, in violation of Iowa Code section 726.6(6) (2018); (2) domestic abuse 

assault by impeding normal breathing, a class “D” felony, in violation of Iowa Code 

section 708.2A(5) (2020); and (3) operating while intoxicated (OWI), a serious 

misdemeanor, in violation of Iowa Code section 321J.2(1), (2)(a) (2021). The court 

sentenced him to indeterminate prison terms not to exceed five years on both the 

child-endangerment and domestic-abuse-assault charges and sentenced him to 

365 days of incarceration on the OWI charge. The two five-year sentences were 

ordered to be served consecutively to each other but concurrent to the sentence 

on the OWI, resulting in an indeterminate prison term not to exceed ten years.

Triervieler appeals. He contends the court abused its discretion by 

(1) mistakenly believing one or both of the felony charges were forcible felonies for 

which the sentences could not be suspended and (2) relying on unproven 

allegations when imposing consecutive sentences.

We have jurisdiction to hear this appeal despite the fact that Triervieler 

pleaded guilty because he has established good cause by challenging his 

sentences and not the guilty pleas. See Iowa Code § 814.6(1)(a)(3) (foreclosing 

the right to appeal following a guilty plea except for appeals from a class “A” felony 

or “in a case where the defendant established good cause”); State v. Damme, 944 

N.W.2d 98, 105 (Iowa 2020) (“[G]ood cause exists to appeal from a conviction 

following a guilty plea when the defendant challenges his or her sentence rather 

than the guilty plea.”). Our review of criminal sentencing is for correction of errors 
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at law. State v. Wilbourn, 974 N.W.2d 58, 65 (Iowa 2022). We only vacate a 

sentence if there is an abuse of discretion or a defect in the sentencing procedure. 

Id.

We begin by addressing Triervieler’s claim that the district court mistakenly 

believed one or both of the felony charges were forcible felonies. This is important 

because, if a charge is a forcible felony, the court has no discretion to suspend the 

prison sentence. See Iowa Code § 907.3 (providing for deferred judgments, 

deferred sentences, and suspended sentences, but making them inapplicable to 

forcible felonies). If the sentencing court believes it has no discretion to suspend 

a sentence when, in fact, it does, the court cannot be said to have exercised its 

discretion, so the sentence must be vacated and remanded for resentencing. See

State v. Davison, 973 N.W.2d 276, 289 (Iowa 2022) (“But when the sentencing 

court fails to exercise discretion because it ‘was unaware that it had discretion,’ we 

typically vacate and remand for resentencing.” (quoting State v. Moore, 936 

N.W.2d 436, 440 (Iowa 2019))). The rule requiring vacation of the sentence and 

remand applies to a mistaken belief that a charge is a forcible felony. Davison, 

973 N.W.2d at 289.

There is no dispute that the two felony charges here were not forcible 

felonies. See Iowa Code § 702.11(2)(e) (excluding child endangerment in violation 

of section 726.6(6) from the category of a forcible felony), (g) (excluding domestic 

abuse assault in violation of section 708.2A(5) from the category of a forcible 

felony). So we must decide whether the court mistakenly believed one or both of 

the charges were forcible felonies—or for some other reason mistakenly believed 

suspended sentences were not an option. 
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Piecing the record together suggests the court made this mistake. The 

same judge presided at both the plea and sentencing hearings. During the plea 

hearing, the court asked Triervieler, “You understand that this is not subject to a 

suspension, this is actual prison time?” After Triervieler indicated he was aware 

of that, the court continued, “So you understand that after sentencing occurs, the 

court will be ordering that the sheriff transport you to the Iowa Medical and 

Classification Center and there deliver you for purposes of serving this term?” 

Then, at the sentencing hearing, after imposing the sentences, the court, in 

discussing bail on appeal, stated the belief that “this is a forcible felony.” 

The two questions at the plea hearing coupled with the statement made at 

the sentencing hearing convinces us that the court mistakenly believed it had no 

discretion to suspend the felony sentences. The State argues that, since the 

statement at the sentencing hearing expressing a belief that one or both of the 

felony charges were forcible felonies was made after the sentence had already 

been imposed, it is of lessened importance because the sentencing decision had 

already been made. We are not persuaded by this argument for the same reasons 

the supreme court rejected a similar argument in Davison. Facing essentially the 

same argument in Davison, the supreme court observed:

Here the State tries to thread a needle. It acknowledges that the 

district court may have misunderstood whether the [felony charge at 

issue] was a forcible felony when bond on appeal was discussed, yet 

claims that the district court didn’t misunderstand the situation 

several minutes earlier when it sentenced [the defendant] to prison.

973 N.W.2d at 289. The court rejected the attempt to thread the needle and noted 

“prudence dictates that we should vacate [the defendant]’s prison sentence and 

remand for resentencing.” Id. 
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Like the supreme court in Davison, we are not persuaded that the district 

court incorrectly believed that suspended sentences were not an option during the 

plea hearing and at the end of the sentencing hearing yet correctly believed it had 

the option of suspended sentences in between those two events when the 

sentencing decision was made. Also like the supreme court in Davison, we believe 

prudence dictates that we should vacate Triervieler’s sentences and remand for 

resentencing. See id. Such resentencing shall be before a different judge. See 

State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (providing that resentencing on 

remand be before a different judge “to protect the integrity of our judicial system 

from the appearance of impropriety”).

Having decided resentencing is required based on the first issue and that 

resentencing shall take place before a different judge, we need not address the 

issue of whether the court considered improper factors. That said, it appears that 

the court did consider improper factors by referencing unproven allegations which 

were not admitted by Triervieler or otherwise established. See State v. Black, 324 

N.W.2d 313, 316 (Iowa 1982) (“The sentencing court should only consider those 

facts contained in the minutes that are admitted to or otherwise established as 

true.”). We trust that the judge resentencing Triervieler on remand will consider 

only proper factors. 

We vacate the sentences imposed and remand for resentencing before a 

different judge.

SENTENCES VACATED AND REMANDED FOR RESENTENCING.