Opinion
No. 2-525 / 01-1581
Filed January 15, 2003
Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.
Defendant appeals from the sentence imposed following his guilty plea to the offense of criminal mischief in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, William Davis, County Attorney, and Julie Walton and Don Frank, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Gerald Hildebrandt appeals from the sentence imposed following his guilty plea to the offense of criminal mischief in the second degree. He contends the sentencing court abused its discretion by relying on improper sentencing considerations. He also claims his sentencing counsel was ineffective. We affirm.
Hildebrandt was charged by trial information with criminal mischief in the second degree in violation of Iowa Code sections 716.1 and 716.4 (2001). He plead guilty to the charge based upon his admission that on his way home from a tavern he punctured or slashed tires on several vehicles in an apartment complex parking lot with a knife. The court ordered a presentence investigation (PSI) report to be delivered by three days before sentencing. The court later sentenced Hildebrandt to an indeterminate five-year term of incarceration.
Hildebrandt appeals from this sentence, claiming the district court abused its discretion by relying on improper sentencing considerations. He also asserts that if this court deems error preservation insufficient on the foregoing claim then his sentencing counsel was ineffective for failing to preserve error, and requests that we proceed on the basis of ineffective assistance of counsel.
Generally, abuse of discretion and consideration of improper sentencing factors are separate issues in reviewing a sentence imposed by the district court. State v. Grandberry, 619 N.W.2d 399, 401 n. 1 (Iowa 2000). Although Hildebrandt contends the court abused its discretion, his arguments relate solely to the consideration by the court of what he claims are improper factors. Thus, whether the district court abused its discretion is not an issue in this case. Id.
In imposing sentence the trial court stated, in relevant part:
The reasons for this sentence are these: This is an intentional but senseless act of serious vandalism against — by a man who is angry about something. And probably you were under the influence of something and taking it out on 25 innocent victims, and our society won't tolerate that, and so you've got a pretty serious offense.
And then you couple that with this criminal history, which is an extensive, extensive criminal history. Certainly he knows better. He's been incarcerated on the installment basis a good portion of his life, and this is just another step. I hope it's the last one.
But with that nature of the offense, and then coupled with his criminal history, incarceration is appropriate, it's recommended by the State, it's recommended by the Department of Corrections as well.
Hildebrandt first claims that in sentencing him to a term of incarceration the sentencing court improperly relied on unproven offenses and unprosecuted offenses as set forth in (1) certain criminal history data which he asserts was included in the PSI report in violation of Iowa Code sections 692.17 and 692.2(1)(b)(3), (2) a "Master Person Record" concerning him which shows sixty-one criminal incidents of which only sixteen dispositions are shown, and (3) an "NCIC Interstate Identification Index" concerning him which shows a juvenile delinquency adjudication, arrests for two offenses which resulted in dismissals, and a charge that was never filed.
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 Hildebrandt's claim that the trial court erred by considering impermissible factors, 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 court's consideration of impermissible factors. Id.; State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). When the trial court relies upon an improper factor, we will set aside a sentence and remand the case for resentencing. Sailer, 587 N.W.2d at 762-63.
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 did refer to Hilldebrandt's "extensive criminal history." However, the PSI report shows he has had convictions, many with incarcerations, beginning in 1985 and continuing through 1999, for the following: willful injury, multiple forgeries, multiple thefts, operating while intoxicated, multiple driving under suspensions, failure to appear, felon in possession of a firearm, possession of a controlled substance, and operating a vehicle without owner's consent. The PSI report thus fully supports the trial court's reliance in part on Hildebrandt's extensive criminal history.
A sentencing court may not rely upon unproven or unprosecuted offenses in determining the appropriate sentence for a defendant. Sailer, 587 N.W.2d at 762. However, Hildebrandt does not point out, and we have not found, anything in the trial court's statement of reasons that indicates it relied on any unproven or unprosecuted offenses appearing in the PSI report. Further, the "Master Person Record" and the "NCIC Interstate Identification Index" were apparently merely filed in the court file, are not even part of the PSI report, and nothing in the record indicates the sentencing court considered them, much less relied on them.
Hildebrandt simply has not affirmatively shown that the sentencing court relied upon unprosecuted or unproven offenses in imposing sentence, whether based on criminal history data showing charges with no disposition after eighteen months or other unproven offenses. 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 Hildebrandt's prior proven offenses and other proper factors, rather than an improper consideration of unproven offenses.
Hildebrandt also claims the sentencing court improperly considered the unproven facts he was "angry" and "under the influence of something" at the time of the crime. We believe both of these facts are supported by the record and thus were proper considerations for the court.
First, there is ample evidence that Hildebrandt had a substance abuse problem with alcohol. He admitted to such at the sentencing hearing when he told the court that he had been going to AA since the commission of the crime and that he "used to be" a chronic substance abuser. He told the presentence investigator that he, "Got drunk and while walking home, I slashed some tires." In addition, there is a statement from his wife in the PSI report that she is divorcing him because of his alcohol problem. Furthermore, Hildebrandt admitted he was coming from a tavern at the time of the incident and the police report of the incident indicates he told the officer he must have been experiencing a "blackout" when he slashed the tires because he did not remember doing it and he had experienced blackouts before. Based on all of this evidence in the record it was reasonable for the court to believe Hildebrandt was probably under the influence of alcohol when he slashed the tires. The court could thus properly consider this as a relevant factor.
Additionally, it was completely reasonable for the court to presume Hildebrandt was "angry" as well as "under the influence of something" when he slashed the tires in the parking lot. A rational, calm, and sober person simply does not use a knife to slash the tires on random vehicles belonging to people he or she does not even know. These statements by the court relate to the nature of the offense as well as the surrounding circumstances, and they are fully supported by the record evidence. Thus, Hildebrandt's anger was a factor the court could properly consider in making its sentencing determination.