Opinion
No. 6-025 / 05-0839
Filed March 1, 2006
Appeal from the Iowa District Court for Dallas County, Paul R. Huscher, Judge.
Michael Buswell appeals the district court's judgment and sentence, asserting the court considered an improper factor in sentencing him. JUDGMENT AFFIRMED, SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellant Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, Wayne Reisetter, County Attorney, and Jeannine Gilmore, Assistant County Attorney, for appellee-State.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Michael Buswell entered an Alford plea to possession of a precursor and possession of a controlled substance. See Iowa Code §§ 124.401(4); 124.401(5) (2003). The district court ordered imprisonment for terms not exceeding five years and one year, respectively, to be served concurrently. On appeal, Buswell asserts that the court considered an improper factor in sentencing him. We agree.
An Alford plea is a variation of a guilty plea in which the defendant does not admit participation in the acts constituting the crime but consents to the imposition of a sentence. North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162, 171 (1970); State v. Burgess, 639 N.W.2d 564, 567 n. 1 (Iowa 2001).
I. Sentencing Proceeding
At the sentencing hearing, Buswell's attorney mentioned that Buswell did not have a driver's license. He also mentioned that Buswell wished to defer substance-abuse treatment until certain children he was taking to and from school had finished the school year. The attorney's statement to the court was as follows:
[DEFENSE COUNSEL]: I'd also like to address a matter that was raised in the presentence investigation report concerning Mr. Buswell and his recommended treatment.
Mr. Buswell has been taking care of some children, and also doesn't have a driver's license. He was waiting until the children were finished with their school and then — which is going to be here within a month, approximately a month from now — and then begin that outpatient treatment that has been recommended.
He informs me he's more than willing to comply with the terms of probation and is asking the court to consider granting him probation.
After this statement was made, the court gave Buswell an opportunity to speak.
THE COURT: Mr. Buswell, before we proceed further, I want to give you the opportunity to tell me anything you'd like to tell me either about the offense or about the sentence in this case.
Is there anything you'd like to tell me?
THE DEFENDANT: Just I accept the responsibility for my actions, and, as Mark said, I was — told them that I would do the treatment as soon as school is out, because I pick them up and take them — or take them and pick them up from preschool.
THE COURT: You're taking children to preschool and picking them up?
THE DEFENDANT: Yeah. I take them, and then I pick them up.
THE COURT: And you have no driver's license?
THE DEFENDANT: No.
The court sentenced Buswell to prison rather than probation, reasoning as follows:
The court is aware of the plea agreement reached between the State and the defendant regarding a recommendation for sentence.
It appears to this court that the defendant has to a substantial degree minimized his prior criminal activity, and it is a substantial list of prior criminal offenses. It appears that he has been in violation of prior release agreements. It does not appear to this court that the defendant is an appropriate candidate for a suspended sentence.
It does not appear likely that he will comply with probation in this matter. It appears that even at the present time Mr. Buswell's reason for not complying with the requirement that he obtain a substance abuse evaluation and follow recommendations for treatment was that he was continuing to illegally operate a motor vehicle without a driver's license for the purpose of hauling children to and from preschool.
The court believes that suspending the sentence and placing this defendant on probation would not adequately protect the public and would not provide rehabilitation for this defendant. The request for probation is denied.
(Emphasis added). Buswell's attorney took issue with the court's statements concerning Buswell's operation of a motor vehicle. He stated:
[DEFENSE COUNSEL]: Your Honor, Mr. Buswell wanted the court to know that he does not drive these children to school, and he never did say that he drove the children to school, that he walks them to school. He says he takes them to school, but he didn't say he was driving them.
I just wanted the court to know that.
THE COURT: All right. Anything else?
[DEFENSE COUNSEL] No, Your Honor.
The district court did not alter its reasoning, and this appeal followed.
II. Consideration of Improper Factor
"[W]hen a challenge is made to a criminal sentence on the basis that the court improperly considered unproven criminal activity, the issue presented is simply one of the sufficiency of the record to establish the matters relied on." State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000).
We find insufficient evidence to support the district court's determination that Buswell drove the children to and from school without a driver's license. Buswell advised the court that he took the children to school and picked them up from school, but he never stated he transported them in a car.
As for the pre-sentence investigation statement on which the State relies, the statement established that Buswell did not have a valid driver's license for a lengthy period of time and was driving a car when he was arrested. It did not establish the car was his or that he was driving children to and from school following his arrest.
We recognize the court cited permissible reasons for Buswell's sentence. However, "we cannot speculate about the weight the trial court assigned this factor, or whether it tipped the scales to imprisonment." State v. Messer, 306 N.W.2d at 731, 733 (Iowa 1981). Accordingly, we vacate Buswell's sentence and remand for resentencing without consideration of the impermissible driving factor, unless the facts before the district court show Buswell committed such an offense or Buswell admits to operating a motor vehicle without a driver's license. See Messer, 306 N.W.2d at 733.