Opinion
No. 2-737 / 02-0234
Filed October 30, 2002
Appeal from the Iowa District Court for Clinton County, David H. Sivright, Jr. and C.H. Pelton, Judges.
Defendant appeals the sentence entered following his plea of guilty to the offense of extortion. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Todd Prichard, Student Legal Intern, Michael E. Wolf, County Attorney, and Gary Strausser and Ross Barlow, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Brian Anderson appeals his sentence for the offense of extortion in violation of Iowa Code section 711.4(1) (2001). He contends the sentencing court abused its discretion by relying on improper sentencing factors. In the alternative, he claims his counsel was ineffective for failing to raise the issue at sentencing. We affirm.
I. Background Facts and Proceedings.
Anderson was charged by trial information with second-degree robbery and first-degree theft. Pursuant to a plea agreement, he pled guilty to an amended charge of extortion and the State dismissed the theft and robbery charges. The district court ordered a presentence investigation (PSI) report prepared for use at sentencing. The PSI revealed two felony convictions and nineteen misdemeanor convictions. It also contained references to two charges without showing dispositions.
At sentencing, Anderson waived any objection to the PSI. The district court sentenced Anderson to an indeterminate term of incarceration not to exceed five years and assessed a fine of $750. The court denied his request for probation.
The court gave the following reasoning for Anderson's sentence.
The reasons for this sentence are these: This man is now thirty years old. He's been in the justice system now for twelve years. He has quite a criminal history already, and he has a terrible alcohol and drug abuse problem. He's been in treatment before, and it reaches a point where the community and the Court does everything it can to try to get him straightened out so he can be a good citizen, a safe person in the community, but when his alcoholism and substance abuse reaches the level of this type of a crime, punishment, taking him out of the community, is an appropriate disposition.
Within the system there's some rehabilitation, if he'll take advantage of what's offered. There's, of course, some specific deterrence in this sentence, a little bit of a general deterrence, and of course, there's some punishment by being taken out of the community away from his family.
Mr. Anderson just isn't doing very well. He can't get his life in order. He probably has some mental health problems too. But, you know, I look at his record, and he's — we've tried things going back ten years ago. He's been in the Residential Corrections Facility, he's been on probation before, he's been through treatment programs, and yet, he continues to abuse substances: drugs and alcohol. And it's become — his own problem has now, all of a sudden, become a community problem and I — think I have to deal with it a little more strictly. At thirty years of age, it's time you get going, and he isn't. He should attend to his responsibility, and he just isn't doing it.
And so, because of the nature of this offense, which is a heinous offense, coupled with his criminal history and the lack of success in the past with rehabilitation in the community, incarceration is the appropriate disposition.
II. Scope of Review.
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).
III. Discussion.
Anderson first claims the court improperly considered the unproven offenses of "suspension" and "consumption" in concluding he is a community problem and thus, not suitable for probation. In the alternative, he argues that his counsel was ineffective for failing to object and preserve the issue of the unproven offenses.
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.
The sentencing court referred to Anderson as a community problem. The court recognized Anderson's admitted alcohol and drug abuse problems and his lack of success with rehabilitation. The court also noted his criminal history and the leniency granted to him in the past through probation and treatment programs.
Anderson has not affirmatively shown that the sentencing court relied upon unproven offenses in imposing sentence. The sentencing court made no reference to the unproven charges complained of in Anderson's brief. The court relied upon perfectly legitimate considerations in arriving at Anderson's sentence. We find no error and affirm the sentence of incarceration imposed by the district court.
Anderson also claims the criminal history data in the PSI should not have included charges without dispositions because he did not give authorization for dissemination of such data pursuant to Iowa Code section 692.2(1)(b)(3). He claims his counsel was ineffective for failing to raise this issue at his sentencing. Even if Anderson could prevail on his claim that the PSI contained material that was objectionable under chapter 692, he would not be entitled to relief. As we have already stated, Anderson has failed to show the sentencing court relied on any allegedly objectionable material in imposing sentence. Accordingly, we find it unnecessary to address the issue of whether Anderson's interpretation of chapter 692 is correct.