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Iowa Supreme Court: net zero burglary sentence change, but redo restitution


The Iowa Supreme Court has decided State v. Mosley, rejecting a burglary defendant’s most hopeful appeal arguments for a new trial or dismissal and instead ordering a resentencing that will not reduce his 25-year prison sentence for burglary. The practical effect was that the lower court will be required to recast restitution and clarify the Defendant’s ability to pay it.

In Mosley, the lower appeals court held that the jury “could have found” that the Defendant had an affair with a woman, that she broke it off, and that the Defendant later showed up inside her apartment and physically grabbed her and threw her up against a wall. A jury convicted the defendant of both first-degree burglary and assault causing bodily injury. The trial judge sentenced Defendant to 25 years on the burglary, 1 year on the assault causing bodily injury, and 30 days on criminal mischief (vandalism)—all concurrent, or, side by side, to one another.

In fact, the parties stipulated that the burglary and the assault causing bodily injury “merged” as noted in the June 26, 2017, order on Defendant’s motion for a new trial. But Defendant was convicted of both.

Defendant appealed citing lack of evidence, other legal errors, and merger of the assault and burglary convictions. The Iowa court of appeals affirmed his conviction but remanded for resentencing because it agreed with the defendant that “assault causing bodily injury” was a lesser included offense in burglary in the first degree when charged as “the person intentionally or recklessly inflict[ed] bodily injury on any person,” because the two offenses “merge.”

Judge Vaithswaran of the Iowa Court of Appeals wrote, that “…Mosley accurately points out,‘[t]he instructions submitted did not ask the jury to engage in the fact-finding necessary to support separate acts of assault.”

State v. Mosley, No. 17-1087 (Ct. App. Oct. 24, 2018)(affirmed in part, reversed in part).

The court of appeals did not find the Defendant's other arguments on different issues persuasive. Defendant sought further review apparently because the only issue he prevailed on before the court of appeals wouldn’t change his 25-year prison sentence. On further review, the Iowa Supreme Court rejected his argument that the jury lacked sufficient evidence to convict him and preserved for postconviction relief action an argument about testimony from a child that Defendant said exceeded predicted testimony in the trial.

The Iowa Supreme Court was most persuaded a need existed to remand for resentencing because the trial court imposed on Defendant restitution in the case but did not examine whether Defendant was able to pay it and, in fact, did not determine an amount of restitution.

The Iowa Supreme Court found that the undetermined nature of the restitution rendered restitution incomplete, stating “a plan of restitution is not complete until the sentencing court issues the final restitution order” which must also examine whether the defendant has the ability to pay.

NOTE: David A. Cmelik Law PLC had no involvement in the Mosley case.

If you or a loved one is charged with a crime in Cedar Rapids, Iowa City, Linn County, Johnson County, Jones County, Benton County, or other Iowa county, contact David A. Cmelik Law PLC for a free initial consultation. Remember, however, that a blog is not legal advice and that sending information to a lawyer over the internet does not establish an attorney-client relationship.

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