Opinion
No. 2-953 / 02-0082
Filed January 29, 2003
Appeal from the Iowa District Court for Buchanan County, Thomas Bower, Judge.
Michal Haulk appeals his sentences, following an Alford plea, for five counts of indecent contact with a child. AFFIRMED.
Thomas Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, and Allan Vander Hart, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Michal Haulk appeals his sentences, following an Alford plea, for five counts of indecent contact with a child, in violation of Iowa Code section 709.12 (2001). He claims the district court abused its discretion by considering charges that were dismissed and by not giving sufficient reasons for giving him consecutive sentences. We affirm.
I. Background Facts Proceedings
Haulk was initially charged with fifteen counts of sexual abuse in the third degree and fifteen counts of incest due to allegations he had sexually abused his niece, who was then thirteen years old. The charges were amended to allege five instances of indecent contact between July 1, 2000 and December 26, 2000. Haulk entered an Alford plea to the five counts of indecent contact with a child, an aggravated misdemeanor.
The district court sentenced Haulk to a term of imprisonment not to exceed two years and to pay a fine of $500 on each of the five counts. The sentences on the first three counts were made consecutive, while the sentences on the remaining two counts were made concurrent to the other sentences. Haulk appeals.
II. Standard of Review
Because the challenged sentence does not fall outside the statutory limits, we review the court's sentencing decision for an abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). An abuse of discretion is found only if the court's discretion has been exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).
III. Merits
Haulk claims the district court improperly considered the original charges against him, which had been dismissed. A court may not consider an unproven or unprosecuted offense when sentencing a defendant unless (1) the facts before the court show the accused committed the offense or (2) the defendant admits it. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).
There was some evidence presented by witnesses during the sentencing hearing concerning the extent of Haulk's contact with the victim which arguably exceeded the parameters of the guilty plea. We note, however, that during the sentencing hearing defense counsel asserted that the court could not consider the dismissed charges in imposing a sentence. The court stated, "Well, the Court's only allowed to look at convictions, so there wasn't any intention on my part to consider things that had been dismissed for purposes of sentencing. That would be improper."
As the State points out, unproven, unprosecuted charges of which the court is aware are not by themselves objectionable; rather, it is the court's reliance on the additional charges that would entitle a defendant to be resentenced. See State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990); State v. Hansen, 344 N.W.2d 725, 730 (Iowa Ct.App. 1983). Here, the court specifically stated it would not consider the dismissed charges and we determine those charges were not considered.
Haulk also claims the court gave insufficient reasons for imposing consecutive sentences in this case. Under Iowa Rule of Criminal Procedure 2.23(3)(d), a trial court must state on the record its reasons for selecting a particular sentence. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). A court must also give reasons for its decision to impose consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). A statement may be sufficient, even if terse and succinct, as long as the brevity of the court's statement does not prevent review of the exercise of the trial court's sentencing decision. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989); State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.App. 1995).
The court stated:
The Court finds that at this point consecutive sentences are appropriate because of the length of time that these offenses occurred, because of the relationship that you established with this young girl, because of the trust that you violated with this young girl, and because of the very nature of those offenses.
We find these reasons are sufficient for the imposition of consecutive sentences in this case.
We affirm defendant's convictions and sentences.