Opinion
No. 3-049 / 02-0918.
Filed February 28, 2003.
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
The defendant appeals his sentence following his conviction for four counts of third-degree sexual abuse. SENTENCES VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
The State charged Ulysses Pankey with four counts of third-degree sexual abuse and two counts of sexual exploitation of a minor. See Iowa Code §§ 709.4(2)(c)(4), 728.12 (2001). Pankey pled guilty to the four sex abuse counts. The State agreed to dismiss the two sexual exploitation counts and to recommend a prison term not exceeding thirty years. The district court declined to accept the State's sentencing recommendation. After adjudging Pankey guilty and finding him a habitual offender, the court sentenced him to a total prison term not exceeding forty-five years.
At sentencing, Pankey's counsel asked the court to reconsider the sentencing decision. The court responded:
The Court will not reconsider its decision. Whatever time Mr. Pankey serves in this case will be far shorter than the life of [S.O.], who is the victim of this crime. Furthermore, Mr. Pankey is a convicted criminal. He has two prior felony convictions. I (sic) should have a fair appreciation of wrongdoing in this society and he completely ignored the consequences of his act. . . . I believe simply under these circumstances with the prior record of this Defendant and appreciating that two counts are also being dismissed that the sentence the Court has imposed will require a mandatory minimum that in this courts (sic) opinion is more appropriate for the wrongfulness of his conduct. . . .
On appeal, Pankey contends the court impermissibly considered the dismissed charges in sentencing him.
A district court may not consider an unproven or unprosecuted offense in sentencing a defendant unless 1) the facts before the court reveal that the defendant committed the offense, or 2) the defendant admits it. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001). 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).
We agree with Pankey that the court impermissibly considered the dismissed charges. The court stated it appreciated "that two counts are also being dismissed." See State v. Messer, 306 N.W.2d 731, 732 (Iowa 1981) (holding court considered unproven charges when it stated it was "taking into consideration the fact that there were two other charges that were not prosecuted in this matter as part of a plea bargaining."); see also Gonzalez, 582 N.W.2d at 516 (holding court impermissibly considered dismissed charges). Cf. Jose, 636 N.W.2d at 43 (holding reference to "additional crimes" did not establish court considered unproven charges, given defendant's prior criminal history). The court made this statement in the course of explaining why the less stringent sentences recommended by the State were rejected. For this reason, we vacate the sentences and remand for resentencing.