Opinion
No. 2-692 / 01-1842
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
Arnold Edward Sims appeals the sentence imposed by the district court upon his conviction for incest in violation of Iowa Code section 726.2 (2001). SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Arnold Edward Sims appeals the sentence imposed by the district court upon his conviction for incest in violation of Iowa Code section 726.2 (2001). He contends the court improperly considered an unprosecuted and unproven charge in imposing sentence. We vacate the sentence and remand for resentencing.
On April 4, 2001 the State filed a trial information charging Sims with sexual abuse in the third degree, in violation of Iowa Code section 709.4(1), and incest, in violation of section 726.2. Pursuant to a plea agreement Sims pled guilty to the incest charge and the State agreed to dismiss the sexual abuse charge.
Sims admitted at the plea proceeding that on or about January 18, 2001 he went to a motel with his seventeen year old granddaughter and had sexual intercourse with her. The minutes of evidence and incorporated-by-reference police reports indicate that during the police investigation the victim alleged the defendant forced her to have intercourse. However, the plea proceeding contains no accusation, admission, or discussion indicating that the sexual intercourse was by force or against the will of the victim.
At the sentencing hearing Sims specifically denied that he in any way forced his granddaughter to have sexual relations with him. The granddaughter's victim impact statement was presented to the court at the sentencing hearing but no sworn testimony regarding the incident, from the victim or otherwise, was presented.
The trial court sentenced Sims to a term of imprisonment not to exceed five years. At the sentencing hearing the district judge made the following comments:
I concur with the presentence investigation, and the county attorney and I agree that you should go to prison. The county attorney's office cut you a lot of slack. You admitted in court sexual conduct which would of exposed you to ten years in prison had Ms. Cox gone through with the Count I charge instead of the Count II charge. By your admissions in court you could of very easily been convicted of Count I. Based on all of the factors I have to consider including safety to the community, I feel it is appropriate that you go to prison.
Sims argues on appeal that contrary to the trial court's comments he at no time admitted to conduct constituting sexual abuse in the third degree and the trial court's comments show that it improperly considered an unprosecuted and unproven charge.
A sentence imposed by the district court is reviewed for correction of errors at law. Iowa R.App.P. 6.4; State v. Sailer, 587 N.W.2d 756, 758 (Iowa 1998). Sentencing decisions of the district court are cloaked with a strong presumption in their favor. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). However, "`[w]e will set aside a sentence and remand a case to the district court for resentencing if the sentencing court relied upon charges of an unprosecuted offense that was neither admitted to by the defendant nor otherwise proved.'" Sailer, 587 N.W.2d at 762 (quoting State v. Black, 324 N.W.2d 313, 315 (Iowa 1982)). A defendant is not required to raise an alleged sentencing defect in the trial court in order to preserve claimed error on that ground. State v. Wilson, 294 N.W.2d 824, 825-26 (Iowa 1980); State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994).
"[W]hen 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 upon." State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). It is improper for the court to consider unprosecuted criminal activity in the absence of sufficient proof or an admission by the defendant of such activity. State v. Thompson, 275 N.W.2d 370, 372 (Iowa 1979). However, there is no general prohibition against considering other criminal activities by a defendant as factors bearing on the sentence to be imposed. Longo, 608 N.W.2d at 474. Facts relied on in imposing a sentence must be proven by a preponderance of the evidence. See State v. Iowa Dist. Ct., 630 N.W.2d 838, 841 (Iowa 2001) (holding that after guilt has been determined, "evidence to support the sentence need only be proven by a preponderance of the evidence"); see also State v. Rettinghaus, 591 N.W.2d 15, 17 (Iowa 1999) (holding that outcome determinative sentencing data need only be found to exist by a preponderance of the evidence) (citing McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67, 79 (1986)).
The State argues the facts before the court sufficiently showed Sims committed the offense of third-degree sexual abuse and thus the sentencing court could properly consider that offense in sentencing him. The State asserts that the age disparity and familial relationship between Simms and the victim make it highly unlikely the intercourse was consensual and thus there was sufficient proof of the sexual abuse charge to allow the court to properly consider it. We disagree.
An essential element of sexual abuse in the third degree is that the sex act was done by "force or against the will of the other person." Iowa Code § 790.4(1) (2001). The sentencing judge here stated that by Sims's own admissions he could have very easily been convicted of the sexual abuse charge. However, at the plea proceeding there was no discussion of the use of force or that the intercourse was against the will of the victim. Furthermore, at the sentencing hearing Sims specifically denied any use of force. The victim gave no sworn testimony regarding the incident and the victim impact statement presented to the court at the sentencing only addressed the emotional impact of the incident on the victim and her recommendation for prison. Accordingly, we do not agree with the trial court's statement that Sims "could of very easily been convicted on Count I" based on his "admissions." Furthermore, we find there was insufficient evidence in the record to show, by a preponderance of the evidence, that Sims committed the crime of third-degree sexual abuse. In doing so we note that the sentencing court could not consider matters contained in the minutes of evidence that were not admitted to or otherwise proved. See State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998).
In sentencing Sims the trial court relied in part on an impermissible factor. We are not in a position to speculate about the weight the sentencing court may have assigned to the improper factor. Id. Sims's sentence must be vacated and the case remanded for resentencing.