Opinion
No. 4-327 / 03-1758.
June 9, 2004.
Appeal from the Iowa District Court for Muscatine County, James A. Weaver, District Associate Judge, and James E. Kelley, Judge.
Eugene Barry appeals his sentence for operating while intoxicated, first offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Gary Allison, County Attorney, and Alan Ostergren, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Eugene Barry appeals his sentence, following a jury's guilty verdict, for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2(1)(a) (2003). We affirm.
I. Background Facts Proceedings
On June 15, 2003, Officer Matthew Fowler stopped a truck driven by Barry after he saw the truck heading east in a westbound lane of a divided highway in Muscatine County. Barry's appearance and demeanor suggested he was intoxicated. After he failed several field sobriety tests, Barry was arrested.
On June 23, 2003, the State charged Barry by trial information with operating while intoxicated. After a jury found him guilty of the aforementioned offense, the court sentenced Barry to serve one year in jail and ordered him to pay a fine of $1000. Barry appeals this sentence.
On appeal, Barry argues:
THE SENTENCING COURT ABUSED ITS DISCRETION WHEN IT CONSIDERED UNPROVEN OFFENSES IN SENTENCING THE DEFENDANT.
II. Standard of Review
We review sentencing challenges for errors at law. State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." Id. (citation omitted).
III. The Merits
Barry argues the trial court impermissibly considered traffic offenses with which he was charged and not convicted in making its sentencing decision. Specifically, he cites twenty-seven offenses listed in a Department of Correctional Services report, variously described as "awaiting disposition," "disposition not known," or "pending." Barry alternatively claims he was denied effective assistance of counsel, citing counsel's failure to object to the court's consideration of these unproven offenses.
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). We therefore limit our consideration to Barry's claim that the trial court abused its sentencing discretion by considering traffic offenses for which Barry was charged but not convicted.
"It is a well-established rule that a sentencing court may not rely upon additional, unproven, and unprosecuted charges unless the defendant admits to the charges or there are facts presented to show the defendant committed the offenses." State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). We will remand the case for resentencing if the court improperly considered unprosecuted or unproven additional charges. Id. The fact the court was merely aware of unproven charges is not sufficient to overcome the presumption that it properly exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990). The defendant must affirmatively show that the court relied upon the unproven offense. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001); State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998).
The trial court's statements upon which Barry relies include the following:
Based upon your age, the criminal record as disclosed in the Report of the Department of Correctional Services, the various sanctions that have been employed in the past without success, I commit you to the Muscatine County Jail for a term of three hundred sixty-five days to commence at 8 a.m. on the 1st day of November 2003.
The DCS record referred to by the court listed a total of fifty-eight offenses. Of those fifty-eight offenses, Barry cites twenty-seven which were described as "awaiting disposition," "disposition not known," or "pending."
In Jose, 636 N.W.2d at 43, the supreme court determined similar statements fell far short of the affirmative showing required to demonstrate the trial court's reliance on inappropriate sentencing factors. Here, the court's ambiguous reference can as easily be interpreted as offenses for which Barry had been convicted. Under these circumstances, we conclude Barry has failed to make the required affirmative showing that the court considered unproven offenses and affirm the trial court's sentencing decision.