No. 100 / 00-1908Supreme Court of Iowa.
Filed July 16, 2001
On appeal from the Iowa District Court for Polk County, Robert A. Hutchinson, Judge.
Defendant appeals the district court’s refusal to exercise discretion in determining the amount of any reduction in his mandatory minimum sentence based upon the defendant’s cooperation in prosecution of other drug offenders as allowed by Iowa Code section 901.10(2)(1999).
SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
Jennifer Larson of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Robert DiBlasi, Assistant County Attorney, for appellee.
Considered by Larson, P.J., and Cady, J., and Andreasen, S.J.[*]
PER CURIAM.
Defendant Scott Lee Nicholson appeals from the sentence imposed following guilty pleas to possession of a controlled substance (methamphetamine) with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7)(1999) and theft in the second degree in violation of Iowa Code sections 714.1(4) and 714.2(2). He claims the district court erred by finding that it had no discretion to reduce his mandatory minimum sentence beyond the amount recommended by the prosecutor for cooperation in the prosecution of other drug offenders as allowed by Iowa Code section 901.10(2). We agree with Nicholson and vacate his sentence and remand his case for resentencing.
At sentencing, the State recommended that Nicholson’s sentence be reduced by one-third for his guilty plea with an additional ten-percent reduction for his cooperation pursuant to Iowa Code section 901.10(2). Nicholson requested he receive a fifty-percent reduction of the remaining mandatory minimum sentence, the maximum allowed by section 901.10(2). The district court determined that it did not have the discretion to reduce the sentence beyond the amount recommended by the State, and it sentenced Nicholson to indeterminate terms of incarceration of twenty-five years on the delivery charge and five years on the second-degree theft charge, to be served consecutively. It imposed the one-third mandatory minimum sentence on the delivery charge and ordered that Nicholson receive a one-third reduction of the minimum sentence for his guilty plea. It also ordered that Nicholson receive an additional ten-percent reduction of the mandatory minimum sentence for his cooperation.
Nicholson appeals this sentence, contending that the court had the discretion to further reduce his sentence for cooperation but failed to exercise it. This case is controlled by State v. Johnson, ___ N.W.2d ___ (Iowa 2001). In Johnson, we concluded that once the prosecutor has requested a reduction based on the defendant’s cooperation, the district court has the ultimate authority to determine the extent of any reduction in the mandatory minimum sentence imposed on a defendant under section 124.413. Johnson, ___ N.W.2d at ___. Thus, the district court failed to exercise its discretion, and the sentence must be vacated and the case remanded for resentencing.
SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
This is not a published opinion.