IN THE COURT OF APPEALS OF IOWA

No. 23-0208

Filed December 6, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JOHNATHAN DALE LAUE,

Defendant-Appellant.

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Appeal from the Iowa District Court for Warren County, Kevin Parker, 

District Associate Judge.

Johnathan Laue appeals the sentence and fine imposed by the district 

court. AFFIRMED AND REMANDED.

John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Thomas E. Bakke and Genevieve 

Reinkoester, Assistant Attorneys General, for appellee.

Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.
2

CHICCHELLY, Judge.

Jonathan Laue appeals the sentence and fine imposed after pleading guilty 

to driving while barred.1 Following a hearing, the district court sentenced Laue to 

two years of incarceration, a fine of $855.00, a criminal penalty surcharge of fifteen 

percent, payment of court costs, and court-appointed attorney’s fees. Laue 

challenges the decision to sentence him to incarceration instead of probation and 

the court’s written order imposing a fine, which deviated from the court’s oral 

pronouncement. We affirm his sentence but remand to the district court to correct 

the clerical error in the written sentencing order.

We review Laue’s sentence for an abuse of discretion. See Damme, 944 

N.W.2d at 105–06 (stating that a sentence that falls within statutory limits “is 

cloaked with a strong presumption in its favor and will only be overturned for an 

abuse of discretion or the consideration of inappropriate matters” (citation 

omitted)). We afford the district court considerable latitude in imposing sentence 

rather than second-guessing its decision. See id. at 106. The court abuses its 

discretion when it bases its decision “on grounds or for reasons that were clearly 

untenable or unreasonable.” Id. (citation omitted).

In determining its sentence, the district court considered, “the protection of 

the public, the gravity of the offense, [Laue]’s criminal history, and [his] 

rehabilitative needs.” The court also referenced that Laue was on probation for 

1

Iowa Code section 814.6(1)(a)(3) (2023) provides a right of appeal following a 

guilty plea only “for a class ‘A’ felony or in a case where the defendant establishes 

good cause.” Because “good cause exists to appeal from a conviction following a 

guilty plea when the defendant challenges [the] sentence rather than the guilty 

plea,” State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020), we proceed to the merits 

of Laue’s appeal.
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two convictions of driving while barred when he committed the present offense. 

Laue had been incarcerated for both convictions. The court cited that this was 

Laue’s ninth conviction of driving while barred and then noted Laue had “been 

thumbing [his] nose” by continuing to drive without permission.

In arguing the court abused its discretion in imposing a term of 

incarceration, Laue relies heavily on the presentence investigation report’s 

recommendation for a suspended sentence. Additionally, Laue refers to his 

personal and family circumstances in arguing for a strictly probationary sentence. 

But Laue fails to show the district court abused its discretion in imposing sentences 

of incarceration. A different judge on a different day may have imposed a different 

sentence, but that does not amount to an abuse of discretion. See, e.g., State v. 

Seats, 865 N.W.2d 545, 553 (Iowa 2015) (“Judicial discretion imparts the power to 

act within legal parameters according to the dictates of a judge’s own conscience, 

uncontrolled by the judgment of others. It is essential to judging because judicial 

decisions frequently are not colored in black and white. Instead, they deal in 

differing shades of gray, and discretion is needed to give the necessary latitude to 

the decision-making process.” (citation omitted)). The district court provided valid 

reasons for rejecting probation and that support the sentences imposed. See id. 

(stating that “a district court did not abuse its discretion if the evidence supports 

the sentence”).

Both parties agree that the written sentencing order incorrectly imposed a 

fine of $855.00 and a fifteen percent criminal penalty surcharge rather than 

suspend the fine, as articulated from the bench. This mistake appears to have 

been a clerical error. “An error is clerical in nature if it is not the product of judicial 
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reasoning and determination.” State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). 

“[W]hen the record unambiguously reflects that a clerical error has occurred, we 

will direct the district court to enter a nunc pro tunc order to correct the judgment 

entry.” Id. Thus, we affirm Laue’s sentence for driving while barred and remand 

for the district court to correct the error by issuance of an order nunc pro tunc. 

AFFIRMED AND REMANDED.

Bower, C.J., concurs; Ahlers, J., partially dissents.
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AHLERS, Judge (concurring in part and dissenting in part).

I agree with and join that part of the majority decision concluding that the 

discrepancy between the district court’s oral pronouncement of sentence and the 

terms of the subsequent written sentencing order requires enforcement of the oral 

pronouncement. See State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995). I part 

ways with respect to the remedy chosen by the majority—remanding the case with 

direction to the district court to issue an order nunc pro tunc to make the written 

sentencing order consistent with the oral pronouncement. While I agree this is the 

usual remedy, see id. at 529, I do not believe this is a statutorily permissible 

remedy here. That is because the oral pronouncement imposed an illegal 

sentence, and we should not remand the case with the direction to impose an 

illegal sentence.2

To set the stage for the discussion of why I conclude the sentence imposed 

was illegal, I start with the sentencing terms announced at the sentencing hearing. 

In addition to imposing a two-year prison term, the district court imposed the 

minimum fine of $855.00 and suspended it. I see no problem with the term of 

incarceration. The problem lies with the fine. I believe suspension of part of the 

sentence—in this case, the fine—without placing Laue on probation amounts to an 

illegal sentence.

2 As the issue is one of an illegal sentence and illegal sentences may be corrected 

at any time, our appellate courts have authority to correct the sentence even when 

neither party raises the issue. State v. Wieneke, No. 20-0126, 2021 WL 219222, 

at *1 (Iowa Jan. 22, 2021). We issued an order requesting supplemental briefing 

from the parties to address this issue. The order made supplemental briefing 

optional, and neither party submitted a supplemental brief.
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My reasoning starts with the principle that “[s]entencing is wholly a creature 

of statute,” which limits the court to “impos[ing] only a sentence authorized by 

statute.” Wieneke, 2021 WL 219222, at *1. To try to find the authority for the 

sentence imposed here, Iowa Code section 901.5 (2022) is the place to start. 

Section 901.5 provides the district court the general authority and obligation to 

impose a criminal sentence. That section gives the sentencing court a variety of 

options. Iowa Code § 901.5. As the district court attempted to suspend part of the 

sentence, the specific option at issue here is that found in section 901.5(3), which 

gives the sentencing court the authority to impose a fine, a term of incarceration, 

or both, and then “suspend the execution of the sentence or any part of it as 

provided in chapter 907.” Id. § 901.5(3). As this option points us to chapter 907, 

we look there next.

Section 907.3 lays out various sentencing options. As a suspended 

sentence is at issue here, section 907.3(3) controls, as it is the option dealing with 

suspending any part of the sentence. Section 907.3(3) tells us “the court may 

suspend the sentence and place the defendant on probation upon such terms and 

conditions as it may require.” (Emphasis added.) As the emphasized passage 

points out, the authority to suspend part of a sentence comes with the obligation 

to place the defendant on probation.3 Further support for the conclusion that 

probation is required when any part of the sentence is suspended comes from 

section 907.1(4), which defines “suspended sentence” to mean “a sentencing 

option whereby the court pronounces judgment and imposes a sentence and then 

3 Section 907.7(1) and (2) then sets the term of probation as two to five years for 

felonies and one to two years for misdemeanors.
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suspends execution of the sentence subject to the defendant’s compliance with 

conditions set by the court as a requirement of the suspended sentence.” 

(Emphasis added.) Finally, our case law directs that “if a district court pursues a 

sentencing option under section 907.3[,] it must place the defendant on probation 

under the form of supervision specified in the statute.” State v. Thomas, 659 

N.W.2d 217, 222 (Iowa 2003).

There is no dispute the district court had the authority to suspend any part 

of Laue’s sentence, including the fine. But I see nothing in the relevant statutes—

sections 901.5(3) and 907.3(3)—giving the district court the authority to suspend 

part of the sentence without also placing Laue on probation. By suspending a 

portion of the sentence without putting Laue on probation, there is no future event 

that could trigger Laue’s obligation to pay the suspended fine. Because there is 

no circumstance under which Laue could become obligated to pay the fine, the 

fine is suspended in name only. See State v. Grey, 514 N.W.2d 78, 79 (Iowa 1994) 

(“Suspending a fine and imposing no fine are not equivalent: a suspended 

sentence is subject to later being executed if the defendant fails to comply with 

conditions set by the court.”). In reality, the fine was waived—an outcome not 

permitted by our sentencing statutes. See Iowa Code § 903.1(2) (“There shall be 

a fine of at least eight hundred fifty-five dollars but not to exceed eight thousand 

five hundred forty dollars.” (emphasis added)); State v. Carr, No. 12-2164, 2014 

WL 667686, at *2 (Iowa Ct. App. Feb. 19, 2014) (“The mandatory minimum 

punishment for an aggravated misdemeanor is a fine of at least $625 [now $855].”).

I recognize that it is a widespread and common practice for district courts 

to do what was done here by suspending the fine of a defendant sent to prison 
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without placing the defendant on probation. I also recognize that the practice 

makes practical sense. There seems to be little purpose served by imposing an 

unsuspended financial obligation on an incarcerated defendant, as the fine would 

be unlikely to provide any further penological purpose and frequently only serve to 

pile some unpayable debt on an incarcerated defendant. By the same token, 

suspending the fine and placing the defendant on probation also seems to serve 

little purpose, as the typical purposes of supervision are rendered moot by the 

defendant’s incarceration—not to mention there would likely be little deterrent 

effect of the suspended sentence when violation of probation would simply trigger 

a repayment obligation rather than incarceration, which is already being served. 

So, when a defendant is sent to prison, suspending the fine without probation may 

be more attractive to district courts than imposing the fine without suspending it or 

suspending the fine with probation. But that is not one of the options the legislature 

has provided to our courts. Our courts are not at liberty to ignore the language 

chosen by our legislature and replace it with our ideas of justice and equality. See 

Young v. O’Keefe, 82 N.W.2d 111, 115 (Iowa 1957) (“We cannot however 

substitute our own ideas of justice and equality for the language used by the 

legislature. Our duty is jealously to guard the rules and processes of the law and 

not to invade the province of the legislature—to ‘hew to the line, let the chips fall 

where they may.’”). Here, the statutory language is clear, and it provides no option 

of suspending part of a sentence without conditioning such suspension on 

imposition of probation.

Circling back to the specific issue here, due to the discrepancy between the 

oral pronouncement of sentence and the written sentencing order that followed, 
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the oral pronouncement controls. See Hess, 533 N.W.2d at 528. However, 

because the oral pronouncement purported to suspend the fine without also 

placing Laue on probation, the sentence imposed was not authorized by statute. 

The sentence is therefore illegal and void, and we are required to vacate it. See 

State v. Woody, 613 N.W2d 215, 217 (Iowa 2000) (“An illegal sentence is one that 

is not permitted by statute. . . . Because an illegal sentence is void, it can be 

corrected at any time.”); Hess, 533 N.W.2d at 527 (“When a court imposes a 

sentence which statutory law does not permit, the sentence is illegal, and such a 

sentence is void and we will vacate it.”). As a result, the remedy here cannot be 

to remand for issuance of a nunc pro tunc order to make the written sentencing 

order consistent with the oral pronouncement because the oral pronouncement 

was that of an illegal sentence. Instead, we are required to vacate the sentence 

as illegal and remand for resentencing. 

For these reasons, I concur in the part of the majority opinion concluding 

that the oral pronouncement of judgment controls, but I dissent from the decision 

to remand with the direction to issue an order nunc pro tunc making the written 

sentencing order consistent with the oral pronouncement of sentence. Since the 

oral pronouncement imposed an illegal sentence, I would vacate the sentence and 

remand for resentencing.