Opinion
No. 2-867 / 02-0252
Filed March 26, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Travis Hill appeals the sentences entered following his convictions for two counts of willful injury. SENTENCES VACATED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Based on an incident which occurred on May 15, 2001, the State charged Travis Hill with attempt to commit murder, willful injury, and going armed with intent. The State later amended the trial information to charge Hill with two counts of willful injury in violation of Iowa Code sections 708.4(1) and (2) (2001). Hill then entered a guilty plea to the amended charges, and the court sentenced him to terms of incarceration not to exceed ten and five years, to be served consecutively. Hill appeals, contending the sentencing court considered improper factors.
Generally, 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. See State v. Mateer, 383 N.W.2d 533, 538 (Iowa 1986). If a court uses any improper consideration in sentencing a defendant, resentencing is required. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
At the sentencing hearing the court listed the following as one of its reasons for imposing consecutive sentences:
"the substantial plea negotiation and plea bargain that you gained in this case." We believe this provides clear indication the court considered the original charge of attempted murder. Thus, we conclude the court improperly relied on an unproven charge.
See State v. Messer, 306 N.W.2d 731, 732 (Iowa 1981). Accordingly, we vacate the sentences and remand for resentencing.