At page 313 Analyzing error preservation and abuse of discretion in sentencing41 citing cases“the use of an impermissible sentencing factor is viewed as an abuse of discretion and requires resentencing.”
- State of Iowa v. Wichang Gach Chawech, 15 N.W.3d 78 (Iowa 2024).published([Error preservation rules], however, [are] not ordinarily applicable to void, illegal or procedurally defective sentences.)
- State of Iowa v. Thomas Patrick Olofson, No. 13-1220 (Iowa Ct. App. June 11, 2014).published(The use of an impermissible sentencing factor is viewed as an abuse of discretion and requires resentencing.)
- State v. Hall, 740 N.W.2d 200 (Iowa Ct. App. 2007).published(It strikes us as exceedingly unfair to urge that a defendant, on the threshold of being sentenced, must question the court’s exercise of discretion or forever waive the right to assign the error on appeal.)
- State of Iowa v. Brianna Leigh Moss, 24 N.W.3d 463 (Iowa Ct. App. 2025).published(providing that error 6 preservation rules are “not ordinarily applicable to void, illegal or procedurally defective sentences)
- State of Iowa v. Jason Michael Pirie, 12 N.W.3d 369 (Iowa Ct. App. 2024).publishedThe only case law Pirie marshals to distinguish this case from Gordon is a 1994 decision from our court: State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Adam Michael Bowen, 990 N.W.2d 318 (Iowa Ct. App. 2022).publishedState v. Hulbert, 481 N.W.2d 329, 335 (Iowa 1992) (sentencing in such a manner as to “thwart a perceived risk of early parole warrants a remand for resentencing”); State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977); State v. Thomas, 520 N.W…
- State of Iowa v. Christopher William Stechman, 974 N.W.2d 546 (Iowa Ct. App. 2022).published“The use of an impermissible sentencing factor is viewed as an abuse of discretion and requires resentencing.” State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). 3 The district court began its detailed recitation of reasons for the…
- State of Iowa v. Brenna Allyn Shafer, 965 N.W.2d 496 (Iowa Ct. App. 2021).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Kevin Fink, 964 N.W.2d 352 (Iowa Ct. App. 2021).publishedThe State concedes Fink preserved error, as “there is no rule which expressly requires the claim of an improper or illegal sentence to be submitted to the trial court prior to an appeal.” State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.…
- State of Iowa v. Larry Gross, 935 N.W.2d 695 (Iowa 2019).publishedHowever, the rule of error preservation “is not ordinarily applicable to void, illegal or procedurally defective sentences.” State v. Richardson, 890 N.W.2d 609, 615 (Iowa 2017) (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.…
Show 29 more citing cases
- State v. Janes, No. 16-1590 (Iowa Ct. App. Jan. 10, 2018).published“The imposition of a sentence is generally within the discretion of the trial court and will be disturbed only upon a showing of abuse of discretion.” State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Willie Clay Werner, No. 16-1315 (Iowa Ct. App. June 21, 2017).publishedSee State v. Remmers, 259 N.W.2d 779 , 784–85 (Iowa 1977); State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Daimonay Darice Richardson, 890 N.W.2d 609 (Iowa 2017).published However, the rule of error preservation “is not ordinarily applicable to void, illegal or procedurally defective sentences.” State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). 11 Richardson now argues on appeal that the district co…
- State of Iowa v. Christopher Anthony Smith, No. 15-1133 (Iowa Ct. App. Feb. 10, 2016).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Antoine Dymetrae Turner, No. 15-0382 (Iowa Ct. App. Dec. 9, 2015).published(stating the court’s “use of an impermissible sentencing factor” is an abuse of discretion requiring resentencing)
- State of Iowa v. Kenneth Dean Weaver Jr., No. 15-0040 (Iowa Ct. App. Oct. 28, 2015).publishedOur holding was not based on the court’s mention of the child but on the court’s attempt “‘to deliberately lengthen a sentence in an effort to interfere with parole practices.’” See id. (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1…
- State of Iowa v. Vincent Lee Hanson, No. 14-1161 (Iowa Ct. App. Oct. 14, 2015).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Eric Hernandez, No. 14-1456 (Iowa Ct. App. Aug. 5, 2015).publishedThe State argues the second challenged statement concerning enforcing the law, when considered as part of the full rationale, underscored the court’s view that a halfway house was not an appropriately stringent sentence. 5 Our supreme cour…
- State of Iowa v. Terry Dale Krambeck, No. 13-0660 (Iowa Ct. App. Apr. 30, 2014).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994).
- State of Iowa v. William J. Moehn, No. 12-2167 (Iowa Ct. App. Apr. 30, 2014).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994) (citations omitted).
- State of Iowa v. Chad Joseph Sickels, No. 13-0911 (Iowa Ct. App. Mar. 26, 2014).publishedOur “focus is whether an improper sentencing factor crept into the proceedings.” State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct. App. 1994).
- State of Iowa v. Adam Paul Blomdahl, No. 13-0521 (Iowa Ct. App. Mar. 26, 2014).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Justin L. Bunker, No. 4-029 / 13-0600 (Iowa Ct. App. Mar. 12, 2014).published State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Jason Devereus Gronstal, No. 4-019 / 13-0131 (Iowa Ct. App. Feb. 19, 2014).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994).
- State of Iowa v. James Blake Cary, No. 3-1240 / 13-0039 (Iowa Ct. App. Feb. 5, 2014).published State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994).
- State v. Matlock, 772 N.W.2d 249 (Iowa Ct. App. 2005).publishedState v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App.1994).
- State v. Laffey, 600 N.W.2d 57 (Iowa 1999).publishedSee State v. Remmers, 259 N.W.2d 779, 784-85 (Iowa 1977); State v. Thomas, 520 N.W.2d 311, 313 (Iowa App.1994).
- State v. Cooley, 587 N.W.2d 752 (Iowa 1998).published(rejecting State’s claim that sentencing error must be raised by motion before the district court)
- State v. Boltz, 542 N.W.2d 9 (Iowa Ct. App. 1995).published State v. Thomas, 520 N.W.2d 311, 313 (Iowa App.1994).
- State of Iowa v. James Peter Rethwisch, 997 N.W.2d 169 (Iowa Ct. App. 2023).publishedSee State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Zackery Tyler Rigel, No. 16-0576 (Iowa Ct. App. Mar. 8, 2017).publishedSee State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994).
- State of Iowa v. Shantel C. Temple, No. 15-1293 (Iowa Ct. App. Sept. 14, 2016).publishedSee State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State of Iowa v. Warren William Lovell, No. 15-0450 (Iowa Ct. App. Mar. 9, 2016).published(Iowa Ct. App. 1 The term originated from “the newspaper business, in which it originally referred to syndicated material in mat or plate form.” Garner’s Dictionary of Legal Usage at 115. 5 1994)
- State of Iowa v. Vaughn Dion White, No. 14-2154 (Iowa Ct. App. Sept. 10, 2015).publishedSee id.
- State of Iowa v. Brittany Marie McBride, No. 14-0378 (Iowa Ct. App. Mar. 11, 2015).publishedSee State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). 3 chaotic time in her life.” She requested “that there be no probation . . . or in the alternative be one-year of self-probation.” The district court’s sentence included “super…
- State of Iowa v. Thomas Hendrickson, No. 13-1689 (Iowa Ct. App. Dec. 24, 2014).publishedSee State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State v. Mai, 572 N.W.2d 168 (Iowa Ct. App. 1997).published(defendant need not object to sentencing irregularity to preserve issue for appeal)
- State v. Bentley, 757 N.W.2d 257 (Iowa 2008).published State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977); see also State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App.1994).
- In the Interest of N.W.E., 564 N.W.2d 451 (Iowa Ct. App. 1997).published(noting preservation rule not ordinarily applicable to void, illegal, or proeedurally defective sentences)
At page 314 Improper consideration of parole prospects in sentencing6 citing casesholding that the district court’s consideration of parole prospects was improper even though the court ordered jail instead of prison
- State of Iowa v. Jacob Lee Goble, 4 N.W.3d 700 (Iowa 2024).published (holding that the district court’s consideration of parole prospects was improper even though the court ordered jail instead of prison)
- State of Iowa v. Vadim Igorevic Shultsev, 987 N.W.2d 448 (Iowa Ct. App. 2022).publishedOur “focus is whether an improper sentencing factor crept into the proceedings.” State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct. App. 1994).
- State of Iowa v. Chad Joseph Sickels, No. 13-0911 (Iowa Ct. App. Mar. 26, 2014).publishedOur “focus is whether an improper sentencing factor crept into the proceedings.” State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct. App. 1994).
- State of Iowa v. Kencade Lee Godfrey, No. 25-1547 (Iowa Ct. App. Sept. 23, 2026).publishedSee State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct. App. 1994) (citation omitted).
- State of Iowa v. Justin Wayne Steil, 979 N.W.2d 315 (Iowa Ct. App. 2022).publishedSee State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct. App. 1994).
- State of Iowa v. Destiny Lynn Chambers, No. 4-057 / 13-0984 (Iowa Ct. App. Mar. 12, 2014).publishedSee State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct. App. 1994).
At page 312 Determining proper sentencing factors in criminal cases3 citing casesclaim that district court improperly considered department of corrections’ parole policies in choosing appropriate sentence
- State of Iowa v. Dionte Williams, No. 15-0190 (Iowa Ct. App. May 11, 2016).publishedState v. Thomas, 520 N.W.2d 311, 312 (Iowa Ct. App. 1994).
- State of Iowa v. Justin L. Bunker, No. 4-029 / 13-0600 (Iowa Ct. App. Mar. 12, 2014).published State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994).
- State v. Lathrop, 781 N.W.2d 288 (Iowa 2010).published(claim that district court improperly considered department of corrections’ parole policies in choosing appropriate sentence)
Other citing cases
- State of Iowa v. Luke Adam Klonglan, 31 N.W.3d 191 (Iowa Ct. App. 2026).published
v.
Michael Allen THOMAS, Defendant-Appellant
This is an appeal by Michael Thomas from judgment and sentencing following a conviction for aggravated domestic abuse assault. Thomas entered a plea of guilty to domestic abuse assault in violation of Iowa Code section 708.2A(2)(c) (1992). The crime is an aggravated misdemeanor.
The district court sentenced Thomas to one year in the county jail, suspended all but six months of the sentence, and ordered the sentence to run consecutively to a prior sentence for domestic abuse assault. Probation was imposed following the incarceration. Thomas was given credit for time served and ordered to make restitution.
In pronouncing sentence, the trial court recognized the Department of Correction’s recommendation of incarceration, and noted Thomas’ criminal history, together with the violent nature of the crime. The trial court then stated “if I thought they would actually keep you in prison for two years, I would send you there.” He later told the defendant “the Code doesn’t permit me to sentence you to prison or jail as long as I think you need to be there.”
Thomas appeals. He contends the district court improperly considered the Department of Corrections’ parole policies in fashioning its sentence. He suggests the district court’s sentence was clearly formulated to ensure Thomas would serve a greater part of his sentence.
The State responds Thomas waived his challenge by failing to object at sentencing. They also claim the remarks by the trial court were not improper when considered in[*313] context of the sentence he received and the other reasons for the sentence.
I.
We first address the claim by the State that defendant failed to preserve error. This claim is based on the defendant’s failure to object during sentencing to the alleged improper sentencing considerations expressed by the court.
Generally, issues not raised in the trial court may not be raised for the first time on appeal. State v. Taylor, 336 N.W.2d 721, 726 (Iowa 1983). This rule gives the trial court the opportunity to correct the alleged error and adds symmetry to the appellate process. See 24 C.J.S. Criminal Law, § 1682 (1989). The rule, however, is not ordinarily applicable to void, illegal or proeedurally defective sentences. Overton v. State, 493 N.W.2d 857, 859 (Iowa 1992); State v. Luckett, 387 N.W.2d 298, 301 (Iowa 1986); State v. Wilson, 294 N.W.2d 824, 825-26 (Iowa 1980). It is incongruous to the sentencing process. A sentence is pronounced and the reasons for the sentence are expressed only after the defendant and counsel have had an opportunity to address the trial judge. See Iowa R.Crim.P. 22(3). There is no procedure which allows the defendant to address the court during or after the pronouncement of sentence, and there is no rule which expressly requires the claim of an improper or illegal sentence to be submitted to the trial court prior to an appeal. State v. Young, 292 N.W.2d 432, 435 (Iowa 1980). We reject the State’s notion that defendant was required to object during the sentencing. [1]
II.
The imposition of a sentence is generally within the discretion of the trial court and will be disturbed only upon a showing of abuse of discretion. State v. Garrow, 480 N.W.2d 256, 259 (Iowa 1992). An abuse of discretion will be found only when the discretion is exercised on grounds which are clearly untenable or to an extent clearly unreasonable. State v. Johnson, 476 N.W.2d 330, 335 (Iowa 1991). The use of an impermissible sentencing factor is viewed as an abuse of discretion and requires resentencing. State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983).
The State concedes it is impermissible for a sentencing court to deliberately lengthen a sentence in an effort to interfere with the parole practices. State v. Hulbert, 481 N.W.2d 329, 330 (Iowa 1992); State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977). It argues, however, that Hulbert and Rem-mers are distinguishable since the trial court in this case actually imposed a more lenient sentence under the available sentencing options. We disagree.
The important focus is whether an improper sentencing factor crept into the proceedings; not the result it may have produced or the manner it may have motivated the trial court. See Remmers, 259 N.W.2d at 785 (sentence vacated since it could not be determined what sentence would have been pronounced without consideration of the parole questions). It is inappropriate to circumvent parole considerations in a judicial sentencing decision. Id.
We understand the rigors of the trial process and recognize that the intensity of the moment may result in comments which greater deliberation would reject. We are also aware that the sentencing process can be especially demanding and requires trial judges to detail, usually extemporaneously, the specific reasons for imposing the sentence. See Iowa R.Crim.P. 22(3)(d); State v. Washington, 356 N.W.2d 192 (Iowa 1984).[*314] The performance of this judicial duty can produce “unfortunate phraseology” and unintended or misconstrued remarks. See State v. Nichols, 247 N.W.2d 249, 255 (Iowa 1976). Comments can also be taken out of context. The statement by the trial court in this case, however, cannot be overlooked as an insignificant or misconstrued remark. The trial judge specifically stated he would “send” the defendant to prison if he “thought they would actually keep [him] in prison for two years.”
The maximum period of confinement faced by defendant was two years. Iowa Code § 903.1(2) (1992). The trial court had discretion to impose determinate confinement in the county jail for a period of up to one year. Iowa Code § 903.4 (1992). If the period of confinement exceeded one year, however, the trial court was required to commit the defendant to the State director of the Department of Corrections for an indeterminate term. Id. The remark by the trial court expressed the notion that a prison sentence was rejected because of the prospect of early release under the parole system. This was an improper sentencing consideration.
We observe that the trial court expressed other reasons for the sentence which were not inappropriate. The court noted the defendant had committed a violent crime and had an extensive prior record, including a prior assault against the same victim. Yet there is no way to know which sentence would have been pronounced without consideration of the parole question. Accordingly, we are required to vacate the sentence and remand for resentencing. Remmers, 259 N.W.2d at 785. In doing so, we do not mean to intimate that other permissible reasons would not support the sentence. We only direct that the resentencing exclude any consideration concerning parole.
REMANDED FOR RESENTENCING.
. We would encourage prosecutors and defense counsel, however, to alert the trial court to any claim of error in sentencing prior to filing an appeal. See Young, 292 N.W.2d at 435. This would be permissible under Iowa R.Crim.P. 23(5)(a). Id. This practice would give the sentencing judge an opportunity to quickly correct any problems or mistakes, and could avoid a costly and lengthy appeal. It would also be welcome by trial judges, who strive to perform their duties properly within the law. Moreover, there is little to gain by using the appellate process to correct a sentencing error if the trial court is willing to make the correction. The remedy on appeal in nearly all cases is to remand for resentencing. See State v. Floyd, 466 N.W.2d 919 (Iowa App.1990) (remand required where sentencing court may have considered improper factors in imposing sentence).