Opinion
No. 2-006 / 01-0273.
Filed February 6, 2002.
Appeal from the Iowa District Court for Story County, STEVEN P. VAN MAREL, District Associate Judge.
Roark appeals his conviction for aggravated misdemeanor domestic assault, first-degree harassment, and fourth-degree criminal mischief. AFFIRMED.
Eric Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery Boles, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Stephen Holmes, County Attorney, and Mary Howell Sirna, Assistant County Attorney, for appellee.
Considered by HAYDEN, HABHAB and PETERSON, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Grove M. Roark appeals from the judgment and sentence entered against him on January 24, 2001. On June 9, 2000, Roark was charged with aggravated misdemeanor domestic assault, false imprisonment, first-degree harassment, and fourth-degree criminal mischief. The charges stemmed from a domestic altercation between Roark and his wife. Trial to a jury was held and on December 22, 2000, Roark was found guilty of aggravated misdemeanor domestic assault, first-degree harassment, and fourth-degree criminal mischief. On January 24, 2001, Roark appeared for sentencing, and the court committed Roark to an indeterminate two-year term on the offense of aggravated domestic assault, an indeterminate two-year term on the offense of first-degree harassment, and one year in the county jail on the offense of fourth-degree criminal mischief. The court ordered the sentences to run concurrently. Roark had no prior criminal record.
Ordinary preservation-of-error principles are not applied in the context of challenges to the district court's sentencing decisions. State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). The appellate court reviews the district court's sentencing decision for correction of errors. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). If the challenged sentence does not fall outside of the statutory limits, the district court's decision is reviewed for abuse of discretion. Id. To show an abuse of discretion the defendant must demonstrate that the decision was based on clearly untenable grounds or reasons, or the court exercised its discretion to an extent clearly unreasonable. State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). Sentencing decisions are cloaked with a strong presumption in their favor. State v. Thomas, 547 N.W.2d 223, 224 (Iowa 1996).
Roark contends the district court abused its discretion by relying upon the nature of the offense as a single factor in determining the sentences to be imposed. Each sentencing decision must be made on an individual basis, and no single factor alone is determinative. State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). The court may consider a variety of factors in imposing sentence "including the nature of the offense and attending circumstances, as well as the defendant's age, character, propensities, and chance of reform." State v. Boltz, 542 N.W.2d 9, 10 (Iowa Ct. App. 1995). Iowa Code section 901.5 (1999) provides that, after examining all the pertinent information, the court shall consider all the sentencing options and
determine which of them is authorized by law for the offense, and of the authorized sentences, which of them or which combination of them, in the discretion of the court, will provide maximum opportunity for rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others.
Iowa Code § 901.5.
The record reflects the court thoroughly explored all appropriate considerations and expressed the reasons for the sentences stating:
Mr. Roark, as I impose your sentence today, there are two things I hope these sentences will accomplish: your rehabilitation and protection for our community from further offenses from you. Mr. Roark, I think what these sentences need to do is to impress upon you that your behavior here was unacceptable. You never had the right to assault another person. And, if you take that right away from someone, there are going to be serious consequences both to yourself and to the victim of your offense. So, somehow this sentence needs to put you in a position where you understand what you did was unacceptable and it was dangerous and it was serious. And, also, the sentence needs to put you in a position where you gain some insight into what you did, get some education so that the next time you are faced with a situation like this, you can make a better decision than you did the night you committed these offenses.
The district court further commented:
Mr. Roark, you have requested deferred judgments here and I am not going to do that. Given the seriousness of the offenses and violence involved, I don't think that a deferred judgment is appropriate. So, the question now is, do I impose a probationary period or do I impose some kind of a prison term, which could be anywhere from two years up to five years, depending on if the sentences run concurrent or consecutive.
. . . .
Mr. Roark, I was here for trial. I heard the testimony of all the people involved. And, I think that this was a particularly dangerous situation. I think that you committed a great deal of violence. And at this point in time, I don't think that a street probation would protect our community from further offenses from you. Mr. Roark, you obviously need education. I think maybe you need some mental health treatment. You obviously need to go to the Batterer's Education Program. And, I think if you get those things, and you will, you can be rehabilitated. But, until those things happen, I think you are a risk. And I don't think that I safely can put you back on the streets.
There is no abuse of discretion where the seriousness of the offense is the most significant but not the exclusive sentencing factor. State v. Morrison, 323 N.W.2d 254, 257 (Iowa 1982). The court very carefully expressed its reflection on the rehabilitation, deterrent, and protection of the community as factors when the sentences were considered. The claim that the court relied solely upon a sole factor, the nature of the offense, is without foundation.
Roark contends the trial court considered uncharged and unproven acts in imposing the sentences. A court may not consider unproven or unprosecuted offenses when sentencing a defendant unless (1) the facts before the court show the accused committed the offense, or (2) the defendant admits it. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1988); State v. Gonzales, 582 N.W.2d 515, 516 (Iowa 1988). The decisions of the trial court are cloaked with a strong presumption in their favor, and until the contrary appears, the presumption is that the discretion of the trial court was properly exercised. State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983). "To overcome the presumption of regularity requires an affirmative showing of abuse, and the burden of so showing rests upon the party complaining." State v. Stanley, 344 N.W.2d 564, 568 (Iowa Ct. App. 1983). The burden is heavy and can only be sustained by showing abuse and prejudice. Id. Roark complains about a statement made by the prosecutor at sentencing when it urged incarceration stating "The fear and trauma he imparted on the wife on the night of the incident did not cease upon the arrest and continues to the present." The victim impact statement filed by the victim described how the incident has affected her. Iowa Code section 915.21 allows for the presenting of a victim impact statement to the court at sentencing. The statute provides that the statement may include, among other things: "[o]ther information related to the impact of the offense upon the victim." It is folly to suggest that a victim impact statement can be presented, but that consideration of authorized contents of the document by the court is not appropriate. Reference to the impact upon the victim of the criminal offenses to which Roark was found guilty is appropriate to include in consideration by the court of the correct sentences to be imposed.
Roark further states that the State made reference to "continued statements and threats to his wife in the presence of law enforcement" in its argument in support of confinement. From that statement of the State, Roark contends, "It is entirely obvious from the record the court considered unprosecuted and unproven charges and conduct when it imposed sentence against the Defendant." This court declines to make that leap of logic. The sentencing judge makes no reference to this comment of the State in its sentencing discussion. The judge makes no reference to "continued statements and threats to his wife in front of law enforcement officers" when it provided the reasons for the sentences. The court did state that he was the trial judge and heard all of the evidence. Certainly those facts that supported the unanimous verdict of the jury of domestic abuse, harassment, and criminal mischief are appropriate for the court to consider in the sentencing determination. There is no record to support Roark's conclusion that the court relied on unprosecuted and unproven charges in its determination of the sentences imposed.
The trial court was very explicit in its explanation of the reasons for its sentences imposed in these proceedings. It meets the requirements of the law. The trial court is affirmed.
AFFIRMED.