Opinion
No. 5-222 / 04-0832
Filed April 28, 2005
Appeal from the Iowa District Court for Washington County, Lucy J. Gamon, District Associate Judge.
Kerrol Andrew Erickson appeals from the sentence imposed by the district court following his conviction for operating while intoxicated, third offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Barbara A. Edmondson, County Attorney, and Eric R. Goers, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Hecht, JJ.
Kerrol Andrew Erickson appeals from the judgment and sentence entered by the district court following his conviction for operating while intoxicated (OWI), third offense. He claims the sentencing court erred by improperly considering an unproven fact in sentencing him to prison. We affirm.
The State charged Erickson with OWI, third offense, in violation of Iowa Code section 321J.2 (2001). A jury found Erickson guilty of OWI. He admitted to two prior convictions for OWI and was sentenced as a third offender. On May 13, 2004, the district court sentenced Erickson to five years in prison. This appeal followed.
We may address challenges to the legality of a sentence for the first time on appeal. State v. Dann, 591 N.W.2d 635, 637 (Iowa 1999). We review sentencing for correction of errors at law. Iowa R. App. P. 6.4. Where a challenged sentence does not fall outside statutory limits, we review the trial court's decision for abuse of discretion; reversal on this ground is warranted only if the court's discretion has been exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). Consideration of an improper factor is a defective sentencing procedure. State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998). In order to overcome the strong presumption in favor of sentencing decisions, "there must be an affirmative showing the court relied on improper evidence." State v. Dake, 545 N.W.2d 895, 897 (Iowa Ct.App. 1996).
Erickson contends the sentencing court improperly considered an unproven fact in sentencing him to prison. He argues that because the district court stated that he had failed substance abuse treatment, which he asserts is an unproven fact, his sentence should be vacated and his case should be remanded to the district court for resentencing. The State maintains that resentencing is unnecessary in this case because the sentencing record as a whole does not reflect that the district court relied on improper or erroneous facts in rejecting probation and sentencing Erickson to prison.
At the sentencing hearing the State recommended Erickson be incarcerated based on his history of alcohol abuse, his alcohol-related convictions, and his other criminal history. The prosecutor questioned Erickson's commitment to stop drinking, noting that he had not followed through with recommended treatment. The presentence investigation also recommended incarceration. Defense counsel asked the court to impose the minimum sentence. In response to the prosecutor's comments regarding treatment, counsel explained that the reason Erickson failed to follow through with his recommended treatment was because he did not have a valid driver's license and his finances were limited. Before sentence was imposed, Erickson simply said his daughter would be hurt if he went to prison without explaining his failure to attend treatment.
After considering all of the available sentencing options, the court ordered Erickson to serve five years in prison. In selecting the sentence it imposed, the court specifically considered Erickson's history of alcohol related offenses and his other criminal history. The court also considered the need to protect the driving public from Erickson, and stated that the maximum sentence would "insure the protection of the public to the maximum extent possible."
While giving reasons for the sentence it selected, the court stated that Erickson "had substance abuse treatment, that it has not been successful . . ." Erickson claims his sentence should be vacated because the record does not support a finding that he had been through treatment and failed.
Upon review of the record as a whole, we do not believe that resentencing is necessary. The presentence investigation, which the court considered, contains unchallenged information that Erickson had not started recommended substance abuse treatment. Just before the court imposed sentence, both the prosecutor and defense counsel made comments which indicate that Erickson had not attended recommended substance abuse treatment. Taken out of context, the court's choice of words might be interpreted to mean that Erickson had been through treatment and failed; however, it is clear from the record as a whole that the court understood that Erickson had not followed through with recommended treatment. We conclude that the district court's decision to reject probation and sentence Erickson to prison was not based on an unproven fact and was not clearly unreasonable. Accordingly, we affirm the district court.
The court file contains a letter to the court from Mecca Substance Abuse Services which recommends that Erickson have extended outpatient treatment. The file also contains a letter from the Bob Gray Outreach Center which notes that Erickson did not follow through with recommended treatment and again recommended that he do so.
As we have mentioned, defense counsel stated that Erickson did not attend recommended outpatient treatment because of the lack of a driver's license and limited financial resources.