Opinion
No. 2-724 / 01-1403.
Filed April 30, 2003.
Appeal from the Iowa District Court for Polk County, SCOTT D. ROSENBERG, Judge.
Defendant appeals sentence alleging improper considerations were used. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox and Daniel Voogt, Assistant County Attorneys, for appellee.
Considered by HARRIS, SNELL and BROWN, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
This is an appeal by defendant following his plea of guilty and sentencing for four counts of delivery of a controlled substance (cocaine based crack), in violation of Iowa Code sections 124.401(1)(b)(3) and (1)(c)(3) (1999). Defendant was sentenced to an indeterminate term of incarceration not to exceed forty-five years. The issues raised are whether the sentencing court relied on improper considerations or failed to exercise discretion and whether defendant received ineffective assistance of counsel. We affirm.
Our review of sentencing error is on errors at law. State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999). Defendant asserts the court considered unproven offenses in determining the sentence. If so, we will set aside a sentence and remand for resentencing. State v. Sailor, 587 N.W.2d 736, 763 (Iowa 1998).
The presentence investigation report (PSI) does include charges that were dismissed. There were approximately twenty convictions or guilty findings and six charges later dismissed. Also, two charges of domestic abuse were dismissed. Also referenced was an extensive juvenile history of alcohol abuse and cocaine use.
The court in its sentencing order for incarceration determined that probation would not provide reasonable protection for the public and would not provide maximum opportunity for rehabilitation. The court considered, as requested by defendant's counsel, the age of defendant, his prior criminal record and that probation would lessen the seriousness of the crime. The considerations were proper. We also find no indication that prior unproven charges were given any consideration by the judge. Accordingly, we will not draw an inference of improper sentencing considerations. See Sate v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).
Defendant further asserts that the inclusion of unproven charges in the PSI violated Iowa Code section 692(1)(b)(3) (2001). That section provides that criminal history data that does not contain any disposition data after eighteen months from the date of arrest may only be disseminated with a signed release from the person who is the subject of the criminal history data. Defendant states that since he did not sign a release, the statute applies.
A defendant's criminal record is a required part of any PSI. Iowa Code § 901.2. Section 901.3(7) provides that all local and state mental and correctional institutions, courts and police agencies shall furnish to the investigator on request the defendant's criminal record. Under section 692.2(1)(a) criminal history data may be provided to "criminal or juvenile justice agencies" by several methods.
We consider the challenged statute in its entirety and in para materia with other statutes. State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). In so doing we consider the objects sought to be attained. Office of Consumer Advocate v. Iowa State Commerce Comm'n, 376 N.W.2d 878, 881 (Iowa 1985). We seek a reasonable interpretation that will best attain the purpose of the statute and avoid an absurd result. In re N.H., 383 N.W.2d 570, 572 (Iowa 1986); see also State v. Bessenecker, 404 N.W.2d 134, 138 (Iowa 1987).
Because a defendant's criminal history is a required subject of the PSI, it would be illogical to conclude a defendant could stop the dissemination of such material by refusing to sign a request for release of the information. Accordingly, we reject defendant's contention that his counsel was ineffective for not objecting to the PSI on this ground.
The court imposed a mandatory one-third minimum sentence on each of the four counts. Defendant claims a failure by the court to exercise discretion in this matter. We find the court clearly exercised its discretion when it inquired about the prosecutor's recommendation, heard the defendant's arguments and then stated the determined sentence in open court. The court stated there were "no mitigating factors due to the nature of the circumstances of the offense." Although mitigating factors were argued to the court, the court's language shows a clear rejection of those factors. It is not necessary for the court to state reasons for rejecting a sentencing option. State v. Ayers, 590 N.W.2d 25, 28-29 (Iowa 1999).