Opinion
No. 4-266 / 03-1322
May 14, 2004.
Appeal from the Iowa District Court for Marshall County, David R. Danilson, Judge.
Amanda Prusha appeals her sentence to child endangerment not resulting in serious injury. CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
Chad Frese of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell and Virginia Barchman, Assistant Attorneys General, and Jennifer Miller, County Attorney, for appellee-State.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Amanda Prusha appeals her sentence, following her guilty plea, to child endangerment not resulting in serious injury in violation of Iowa Code sections 726.6(1), 726.6(3), and 726.6(6) (2003). We affirm the conviction, vacate the sentence, and remand for resentencing.
I. Background Facts Proceedings
On April 1, 2002, Prusha was charged by trial information with child endangerment resulting in serious injury following the death of her two-year-old son, Jesse Snyder. The case went to trial on January 7, 2003, and ended in a mistrial three days later.
Thereafter, Prusha pled guilty to the lesser-included offense of child endangerment not resulting in serious injury. In order to establish a factual basis for her plea, Prusha admitted that Jesse was knowingly exposed to methamphetamine while in her care. The court accepted her plea and ordered a presentence investigative report. At the sentencing hearing, Prusha objected to the admission of evidence of Jesse's death because it was unrelated to the factual basis for the crime of child endangerment not resulting in serious injury. She further objected to the court's consideration of victim impact statements from persons who were not members of Jesse's immediate family. The court overruled both objections. On August 8, 2003, Prusha was sentenced to serve one year in the Marshall County jail, with six-months suspended and credit for time served; probation for two years; and fined $1000 plus applicable attorney fees and court costs.
On appeal Prusha challenges her sentence and raises the following issues for review:
I. THE DISTRICT COURT ABUSED ITS DISCRETION IN RELYING UPON UNPROVEN CONDUCT ON THE PART OF THE DEFENDANT.
II. THE DISTRICT COURT ABUSED ITS DISCRETION IN IMPROPERLY RELYING UPON VICTIM IMPACT STATEMENTS WHICH WERE OFFERED AND SUBMITTED BY PERSONS NOT STATUTORILY DEFINED AS "VICTIMS."
II. Standard of Review
We review sentencing challenges for errors at law. State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." Id. (citation omitted).
III. Unproven Conduct
"It is a well-established rule that a sentencing court may not rely upon additional, unproven, and unprosecuted charges unless the defendant admits to the charges or there are facts presented to show the defendant committed the offenses." State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). We will remand the case for resentencing if the court improperly considered unprosecuted or unproven additional charges. Id. The fact the court was merely aware of unproven charges is not sufficient to overcome the presumption that it properly exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990). The defendant must affirmatively show that the court relied upon the unproven offense. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001); State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998).
Prusha argues the court improperly considered her arguable responsibility for Jesse's death in determining her sentence for child endangerment. The following multiple references to Jesse's death were made by the court at the sentencing hearing:
When we consider the reasons why the Court is to impose a sentence, the Court notes that the Court is to be concerned about the rehabilitation of the defendant and to protect the community from further offenses. There is absolutely nothing this Court can do to bring Jesse back, and we no longer have sentences that are based upon an eye for an eye. We solely hope to rehabilitate the defendant and protect the community.
Your actions, Ms. Prusha, the last few days of Jesse's life suggest to me that you are not an evil person. However, you certainly made some poor and perhaps monumental mistakes. . . . But clearly there is great anger among many people due to the pain of Jesse's death.
As previously noted, Prusha pled guilty to child endangerment not resulting in serious injury based on the fact that she knowingly exposed Jesse to methamphetamine use. Although the court noted this circumstance, we determine the trial court improperly based Prusha's sentence in part on her unprosecuted and unproven responsibility for Jesse's death. There is no evidence Prusha admitted responsibility or that her culpability in Jesse's death was otherwise established. We therefore vacate the sentence imposed and remand for resentencing. See, e.g., State v. Black, 324 N.W.2d 313, 314 (Iowa 1982) (remanding for resentencing based on trial court's impermissible consideration of an unproven offense).
IV. Victim Impact Statements
We briefly address this issue because it may be raised on remand for resentencing. Impact statements are either written or oral presentations that describe the physical, emotional, or other effects suffered by the victim of the defendant's criminal conduct. Iowa Code § 915.10(4). A victim is defined as follows:
" Victim" means a person who has suffered physical, emotional, or financial harm as the result of a public offense or a delinquent act, other than a simple misdemeanor, committed in this state. " Victim" also includes the immediate family members of a victim who died or was rendered incompetent as a result of the offense or who was under eighteen years of age at the time of the offense.
Immediate family members under Iowa Code section 915.10(3), include those related to the victim in the second degree of consanguinity. State v. Sumpter, 438 N.W.2d 6, 8 (Iowa 1989). The second degree consists of grandparents, grandchildren, brothers, and sisters. Id. Aunts, uncles, nephews, nieces, and great-grandparents comprise the third degree. Id. The sentencing record includes impact statements made by Valerie Turnbull (Jesse's aunt), Sean Turnbull (Jesse's great-uncle), Amber Snyder (Jesse's aunt), Becky Snyder (Jesse's aunt), Robin Garcia (Jesse's aunt), Michelle Brewer (Jesse's aunt), and Leslie Williams (Jesse's great-aunt). Because the persons from whom these statements were received do not fall within the definition of victim, their impact statements should not be considered by the court on remand