Opinion
No. 2-733 / 02-0001
Filed October 16, 2002
Appeal from the Iowa District Court for Union County, Darrell Goodhue and James W. Brown, Judges.
The defendant appeals his sentence following his conviction for driving while barred. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Timothy Kenyon, County Attorney, for appellee.
Considered by Hecht, P. J., and Vaitheswaran and Eisenhauer, JJ.
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 committing the offense. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).
Jon Alan Shields pled guilty to driving while barred. At the sentencing hearing, he acknowledged he was also guilty of driving while barred in another county. He additionally acknowledged he had a drug and alcohol problem. Finally, he conceded the accuracy of his presentence investigation report, listing a series of convictions for operating while intoxicated and possession of drugs.
Prior to sentencing Shields, the district court stated:
THE COURT: Some of the other offenses that are listed here indicated probation resulted from those violations, and it simply has not been effective. And I think it has not — probation has not served to rehabilitate Mr. Shields, and it doesn't provide any protection to the public, if he's going to continue to drive.Now, I certainly recognize that these are what are generally classified as nonviolent offenses, but they have a real potential for injury to the public, as well as to Mr. Shields, if he's operating a motor vehicle, particularly if he happens to be doing it while he's under the influence of some substance. That we'd like to protect the public from.
I recognize that Mr. Shields now professes to be sorry for what he's done and that he has learned a lesson, but I have to question that because he keeps doing the same thing over and over again, and why you would suddenly see the light at this point misses me.
You're here on a driving while barred, which is not the first time that you had that problem. You've got a conviction in another county which you're facing at this time for the same offense, and you've told me here that you were guilty of yet another driving while barred on the offense which occurred in August. And yet you're asking me to say that the public doesn't deserve any protection from somebody who is going to ignore the law consistently, regularly, and seemingly with impunity. And I'm not willing to do that.
(Emphasis added). Citing the emphasized portion of the court's statement, Shields argues the district court impermissibly considered a "non-existent, hypothetical charge." We disagree. The court merely made reference to the very real fact that Shields had in the past repeatedly been behind the wheel of a car while intoxicated and continued to drive while barred, placing the public and himself at risk. See Jose, 636 N.W.2d at 41. Finding no reliance on impermissible sentencing factors, we affirm Shields's judgment and sentence.