State v. Freund

Full title: STATE OF IOWA, Plaintiff-Appellee, v. NOEL JON FREUND, Defendant-Appellant

Court: Court of Appeals of Iowa

Date published: Apr 4, 2003

665 N.W.2d 442 (Iowa Ct. App. 2003)

Opinion

No. 3-183 / 02-1165

Filed April 4, 2003

Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

Defendant appeals the judgment and sentence entered following his plea of guilty to two counts of first degree theft. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.

EISENHAUER, J.

Noel Freund appeals the judgment and sentence entered following his plea of guilty to two counts of first degree theft, in violation of Iowa Code sections 714.2(1) and 614.1(2) (1999). He contends the district erred by considering unprosecuted charges when it sentenced him. We review the court's sentencing decision for an abuse of discretion. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).

When a sentencing court relies on unprosecuted and otherwise unproven charges we must set aside the sentence and remand to the district court for resentencing. State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998). However, the defendant must make an affirmative showing the court actually relied on unprosecuted and unproven offenses. Id. Freund failed to show the district court relied on unprosecuted offenses.

In sentencing Freund, the district court made reference to statements made by two of his victims during the sentencing hearing, pursuant to Iowa Code section 915.21. In their testimony, the victims recount the impact Freund's actions had on their lives and they note the extravagant lifestyle Freund enjoyed at their expense. One of the victim's made reference to a family member Freund allegedly swindled out of her life savings. In sentencing Freund, the district court made specific reference to that allegation, stating "I do not have sufficient evidence as to it's (sic) veracity to allow me to rest my decision on that information." On this record, we find no abuse of discretion.

AFFIRMED.