Opinion
No. 99 / 00-0962
Filed July 16, 2001
On appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.
The defendant appeals the sentence entered following his conviction for lascivious acts with a child.
AFFIRMED.
Stephan J. Japuntich, Assistant State Appellate Defender, until withdrawal, then Dennis A. Bjorkland, Coralville, for appellant.
Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Considered by Larson, P.J., and Cady, J., and Andreasen, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).
The defendant, Harold Ott, appeals the sentence entered by the district court following his conviction for lascivious acts with a child, in violation of Iowa Code section 709.8(1)(1999). Ott asserts the district court (1) erred in considering impermissible factors in the presentence investigation report, and (2) abused its discretion in sentencing him to a term of imprisonment rather than to probation. We disagree and affirm.
In February 2000, Ott was charged by trial information with lascivious acts with a child following a New Year's Eve incident in which he rubbed the breasts and genitals of his wife's eight-year-old niece. When interviewed by the Davenport police, Ott admitted he inappropriately touched his niece. He maintained this was the only time that such behavior occurred. Ott, however, subsequently admitted to a police detective he had touched his niece's genitals outside her clothing on at least four previous occasions. Dr. David McEchron later evaluated Ott for participation in a sex offender program. In his psychological report, Dr. McEchron noted that Ott admitted to four prior sexual incidents with his niece.
Ott ultimately pleaded guilty to the charge pursuant to Iowa Rule of Criminal Procedure 9. The district court accepted the plea and ordered the preparation of a presentence investigation report (PSI). At sentencing, the district court considered the contents of the PSI, including Dr. McEchron's report. The district court provided Ott the opportunity to challenge the information contained in the PSI. Ott's defense counsel made two minor corrections to the PSI, but did not challenge the inclusion of Ott's admissions. Despite the PSI's recommendation for probation, the district court sentenced Ott to an indeterminate term of imprisonment not to exceed five years. Ott has appealed.
Our scope of review is for the correction of errors at law. Iowa R. App. P. 4. A sentence will not be upset on appellate review unless a defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure such as the trial court's consideration of impermissible factors. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). An abuse of discretion is found when the sentencing court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Privitt, 571 N.W.2d 484, 486 (Iowa 1997).
Ott first maintains the district court impermissibly considered unproven offenses outlined in the PSI report in sentencing him to a term of incarceration. We disagree.
A sentencing 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. Messer, 306 N.W.2d 731, 732-33 (Iowa 1981). We recently held that "when a challenge is made to a criminal sentence on the basis that the court improperly considered unproven criminal activity, the issue presented is simply one of the sufficiency of the record to establish the matters relied on." State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). "If a court in determining a sentence uses any improper consideration, resentencing of the defendant is required." Id.
We find the facts of the present case similar to those in Witham. The main issue in Withamwas "whether the contents of the mental health report in the PSI constituted facts before the court which showed the defendant had committed a prior unproven sexual offense against a child." 583 N.W.2d at 678. In rejecting the defendant's challenge to his sentence, the court noted the defendant did not claim the mental health portions of the PSI were inaccurate and that he implicitly confirmed their accuracy by admitting he received counseling due to his guilt for abusing his stepdaughter many years earlier. Id. The court ruled that under these circumstances, "the unchallenged portions of the PSI report constituted sufficient facts from which the sentencing court could consider the defendant's prior sexual abuse of his stepdaughter." Id.
In the present case, Ott and his counsel were afforded an opportunity to challenge portions of the PSI. Defense counsel requested two minor corrections, one of them to Dr. McEchron's report, but did not challenge the inclusion of Ott's admissions. Under these circumstances, the unchallenged portions of Dr. McEchron's report constituted sufficient facts from which the sentencing court could consider Ott's prior sexual acts with his niece. See Grandberry, 619 N.W.2d at 402 (district court may properly consider PSI information in sentencing where defendant failed to make any material changes to the report when presented to him). We find no error here.
We also reject Ott's claim the district court abused its discretion in sentencing him to incarceration. In applying its discretion in a sentencing matter, the district court "should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform." State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). Iowa Code section 901.5 (1999) provides that the court must also determine which sentence "will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others."
Although the PSI and Dr. McEchron recommended Ott be sentenced to probation, we have previously held that it is not an abuse of discretion to refuse to grant probation even in the face of such recommendations. State v. Taylor, 490 N.W.2d 536, 539 (Iowa 1992). In the present case, the district court, while acknowledging that Ott was not in danger of committing other types of criminal acts, nevertheless concluded that, based on the PSI information, there was a risk that he might repeat the current offense. Based on its concerns for Ott's rehabilitation and the protection of society, the court imposed a term of incarceration. We conclude the district court did not abuse its discretion in imposing such a sentence. Accordingly, we affirm Ott's sentence.
AFFIRMED.
This is not a published opinion.