Opinion
No. 2-927 / 02-0675.
Filed December 30, 2002.
Appeal from the Iowa District Court for Scott County, MARK J. SMITH, Judge.
Defendant appeals his sentences imposed, following guilty pleas, for possession of marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2001), and possession of crack cocaine with intent to deliver, in violation of section 124.401(1)(c)(3). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, William Davis, County Attorney, Joseph Grubiscich and Robert Weinberg, Assistant County Attorneys, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
James Lamont Johnson appeals his sentences imposed by the district court, following guilty pleas, for possession of marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2001), and possession of crack cocaine with intent to deliver, in violation of section 124.401(1)(c)(3). He contends the sentencing court abused its discretion by relying on improper sentencing considerations, and alternatively claims his counsel was ineffective for failing to raise this issue at sentencing. We affirm.
Johnson was charged by trial information with possession of marijuana with intent to deliver, possession of more than five grams of crack cocaine with intent to deliver, and two counts of failure to affix a drug tax stamp. Pursuant to a plea agreement Johnson plead guilty to the marijuana charge, and to possession of five grams or fewer of crack with intent to deliver. The State dismissed the two counts of failure to affix a drug tax stamp. The court ordered a presentence investigation (PSI) report to be delivered to the court prior to sentencing.
Johnson appeared for sentencing on these charges in conjunction with two other cases. The court sentenced Johnson to imprisonment for a term not to exceed five years on the marijuana charge and a term not to exceed ten years on the crack cocaine charge. Denying Johnson's request for concurrent sentences, the court ordered the two sentences to run concurrently with each other but consecutively to the concurrent sentences imposed at the same hearing on the charges in the other two cases. At sentencing Johnson waived any objection to the presentence investigation report.
At the sentencing hearing the district judge made the following comments:
Mr. Johnson, I reviewed the presentence investigation. You're 19 years old. Your record up till now has been abominable. I feel that if — when you're released, you will go out and commit more crimes. It is just a matter of when, not if. So I am of the opinion that consecutive sentences are warranted for the reason of the fact that you appear to be at this young age prone to continue to commit criminal offenses based on your criminal history. Also I reviewed the file that you were charged as a youthful offender and you pled guilty to willful injury and the facts of that case indicate that you actually physically harmed an individual to a great degree given the circumstances. Therefore, I feel a period of incarceration is warranted and that would be a lengthy period of incarceration, and I believe consecutive sentences are warranted based on those factors.
Johnson claims these comments show the sentencing court abused its discretion by relying on improper sentencing considerations. He alternatively claims his attorney was ineffective for failing to raise this issue at sentencing. Specifically, Johnson argues the trial court relied on unproven offenses, including certain criminal history data allegedly improperly included in the PSI report, in imposing consecutive sentences. He asserts the criminal history data that shows charges with no disposition after eighteen months should not have been included in the PSI report because he did not give authorization for the dissemination of such data, such authorization being required under Iowa Code section 692.2(1)(b)(3).
A defendant is not required to raise an alleged sentencing defect in the trial court in order to preserve claimed error on that ground. State v. Wilson, 294 N.W.2d 824, 825-26 (Iowa 1980); State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). We therefore address Johnson's claim that the trial court erred by considering impermissible factors, unproven offenses, and need not reach his claim of ineffective assistance of trial counsel.
A sentence imposed by the district court is reviewed for correction of errors at law. Iowa R.App.P. 6.4; State v. Sailer, 587 N.W.2d 756, 758 (Iowa 1998). Sentencing decisions of the district court are cloaked with a strong presumption in their favor. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). A sentence will not be upset on appeal unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure such as the trial court's consideration of impermissible factors. Id.; State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). However, "`[w]e will set aside a sentence and remand a case to the district court for resentencing if the sentencing court relied upon charges of an unprosecuted offense that was neither admitted to by the defendant nor otherwise proved.'" Sailer, 587 N.W.2d at 762 (quoting State v. Black, 324 N.W.2d 313, 315 (Iowa 1982)).
The fact the sentencing court was merely aware of improper matter, such as unproven charges, is not sufficient to overcome the presumption it properly exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990). To overcome the presumption in favor of a sentencing decision, a defendant must affirmatively show that the district court relied on improper evidence such as unproven offenses. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001); Sailer, 587 N.W.2d at 762; Ashley, 462 N.W.2d at 282.
As set forth above, the sentencing court did refer to Johnson's "criminal history," that he had "been charged as a youthful offender," and had "pled guilty to willful injury" in which he "actually physically harmed an individual to a great degree." However, these were not unproven charges or improper matters for the sentencing court to consider. According to the PSI report Johnson's proven delinquent acts and crimes included (1) "person under legal age," (2) curfew violation, (3) willful injury, (4) possession with intent to deliver an imitation substance, (5) failure to have a driver's license, and (6) interference with official acts. The willful injury involved particularly egregious facts, Johnson pouring boiling cooking oil on a sleeping victim resulting in severe burns, skin grafts, and loss of use of one of the victim's eyes.
Johnson simply has not affirmatively shown that the sentencing court relied upon unprosecuted or unproven offenses in imposing sentence, whether based on criminal history data showing charges with no disposition after eighteen months or other unproven offenses. The sentencing court's challenged statements do not "rise to the level of affirmative showing made in cases where we have vacated and remanded based on the sentencing court's reliance on unproven charges." Jose, 636 N.W.2d at 42. When we consider the statements in context, we conclude they show only a proper consideration of Johnson's prior proven offenses and other proper factors, rather than an improper consideration of unproven offenses.
Finding no error, we affirm the sentences imposed by the district court.