Opinion
No. 2-706 / 02-0341
Filed October 16, 2002
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer and Jon Fister, Judges.
Defendant appeals his sentences, following a guilty plea, imposed by the district court for possession of marijuana with the intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2001), and a failure to affix a drug tax stamp, in violation of Iowa Code section 453B.12. 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, Thomas Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
David L. Dillon appeals his sentences, following a guilty plea, imposed by the district court for possession of marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2001), and a failure to affix a drug tax stamp, in violation of Iowa Code section 453B.12. 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.
Dillon was charged by trial information with possession of marijuana with intent to deliver, domestic abuse assault causing bodily injury, and possession of drug paraphernalia. Shortly thereafter an amended trial information was filed to include a drug tax stamp violation. Pursuant to a plea agreement Dillon pled guilty to possession of marijuana and the drug tax stamp violation and the State dismissed the domestic abuse assault and drug paraphernalia charges. The district court ordered a presentence investigation (PSI) report for use at sentencing.
The district court sentenced Dillon to concurrent five-year sentences, suspended the sentences, and placed Dillon on probation for three to five years on conditions which included Dillon's residence in a treatment facility for one year. It denied Dillon's request for deferred judgments. At sentencing Dillon waived any objection to the presentence investigation report.
At the sentencing hearing the district judge made the following comments:
Looking over the presentence investigation it seems to me, Mr. Dillon, that part of the reason you've had some of these difficulties is that there haven't been much in the way of consequences for the different kinds of problems you've gotten yourself in and you haven't been able to get the message about the public intoxication, the disorderly conduct, the various other things that have interfered with you getting ahead. . . . and it would be good for you to have reason to take it more seriously.
And so I think that having you go again, now that you're into more serious crimes, felonies instead of misdemeanors, without a record is not in your best interests. I think that with one drug conviction on your record and then being subject to what would happen if there were further things like that or further felonies would be a good deterrent for you because things get worse after your first felony conviction in terms of what the consequences are.
The people doing the presentence investigation had a good opportunity to look at your history, your family history, your work history, your educational history, and so forth, and they concluded that a deferred judgment was not a good idea, and I think I agree with them and with the State.
Dillon 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, Dillon argues the trial court relied on unproven offenses, including both certain criminal history data improperly included in the PSI report and certain dismissed charges, in rejecting his request for deferred judgments and instead imposing suspended sentences. He asserts the criminal history data that shows charges but 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 Dillon'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.
The sentencing court referred to Dillon's previous offenses of public intoxication and disorderly conduct. However, these were not unproven offenses as Dillon himself had told the presentence investigator he had been charged with and had served time or been fined for more than one of each of such offenses. The court also referred generally to "other things" which had caused Dillon trouble, to Dillon's prior "misdemeanors," and to his "history." Here again, however, these were proper matters for the sentencing court to consider as Dillon acknowledged a drinking problem and drinking to excess at the time of the incident that led to the present charges, other prior misdemeanor convictions were shown by the PSI report and acknowledged by Dillon through counsel, and Dillon's general background and history were shown by the PSI report.
Dillon simply has not affirmatively shown that the sentencing court relied upon unproven offenses, whether criminal history data showing charges but no disposition after eighteen months or other unproven offenses, in imposing sentence. 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 Dillon's prior convictions and other proper factors, rather than an improper consideration of unproven offenses.
Finding no error, we affirm the sentences imposed by the district court.