State v. Black, 66406

• Decision Date: 29 September 1982
• Docket Number: No. 66406,66406
• Citation: 324 N.W.2d 313
• Parties: STATE of Iowa, Appellee, v. Donald Eugene BLACK, Appellant.
• Court: Iowa Supreme Court

Page 313

324 N.W.2d 313

STATE of Iowa, Appellee, v. Donald Eugene BLACK, Appellant.

No. 66406.

Supreme Court of Iowa.

Sept. 29, 1982.

Harlan H. Giese, Jr., Davenport, for appellant.

Thomas J. Miller, Atty. Gen., M. J. Blink, Asst. Atty. Gen., William Davis, Scott County Atty., and James Hoffman, Asst. Scott County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

Donald Eugene Black pleaded guilty to a charge of indecent exposure in violation of section 709.9, The Code, a serious misdemeanor, and was sentenced to the maximum term of incarceration. Black now contends that the district court erred in determining his sentence by giving consideration to a burglary charge that had been dismissed pursuant to a plea bargain. We find that the district court may have improperly based Black's sentence on allegations arising from the unprosecuted burglary charge that were neither admitted by the defendant nor proved independently. We therefore remand the case to the district court for resentencing.

Black was charged under a two-count information alleging that he was guilty of indecent exposure in violation of section 709.9, The Code, and burglary in the second degree in violation of sections 713.1 and 713.3, The Code. In the minutes of testimony attached to the information it was stated that the victim would testify she awoke to find the defendant in her home. He exposed his genitals and asked her to masturbate him. She refused. The victim let Black spend the night in her home, but the next day she drove him to a local restaurant, returned home, and called the police. The police later found evidence that entry to her home had been gained through a locked screen.

Black only partially admitted the State's version. In the presentence report and in his statement before the sentencing judge, Black denied the burglary and claimed that he had gone to the victim's home because he knew her. Black indicated that after he knocked on the door she voluntarily let him inside and allowed him to spend the night. At the plea proceeding he admitted asking the woman "for sex" while he was naked. He also admitted using drugs at the time and being confused over what had happened.

At the sentencing the following colloquy occurred between the sentencing court and the defendant:

Mr. Black, I have had the opportunity to review the presentence investigation and the additional information supplied by Court Services in this regard. It is apparent to me that Court Services does not want you on probation, nor do they feel that the Residential Corrections Facility is an appropriate disposition, not so much from the standpoint of your needs as the inability of the Residential Corrections Facility to provide for you the necessary services. The fact that you pled guilty to the charge of Indecent Exposure cannot and does not belie the fact that the State in return for that plea dismissed a Burglary charge, from which the facts indicate that you entered the private residence of an individual who was a total stranger and, in effect, held that person at bay all night long. The Court cannot and will not ignore the factual basis which gives rise to this charge.

Under the circumstances, the Court believes that incarceration is necessary, in light of the very favorable plea agreement which was executed in this matter.

Is there any reason why we should not proceed with sentencing?

MR. GIESE: No, Your Honor.

THE COURT: Mr. Black?

THE DEFENDANT: I wasn't guilty of that burglary to begin with.

THE COURT: You didn't plead guilty to the burglary.

THE DEFENDANT: I know. I know that's what I was charged with, then I was charged with Indecent Exposure. The reason I accepted the plea bargain is because I figured if I didn't do that--I figured I'm guilty enough to be--I mean for Indecent Exposure, I'm guilty enough to be charged with that, but the Burglary, I don't see how I could be--

THE COURT: I said that the factual basis for the charge, the facts that give rise to the charge in this case, are something that I cannot and will not ignore.

THE DEFENDANT: In other words--

THE COURT: You may have pled guilty to an Indecent Exposure, and that's a very favorable plea bargain as far as you are concerned in light of the charge that's being dismissed, but what I am saying to you is that the circumstances out of which this offense arises are of such a severity that you need something to remind you that you do not enter people's houses without their permission.

Black argues that the record of the sentencing hearing demonstrates that the court considered the burglary allegations. He also contends that this consideration was improper because the burglary allegation was not substantiated by the evidence nor supported by an admission of guilt. The State maintains, however, that the sentencing court considered the burglary only as a part of the circumstances involved in the charge of indecent exposure to which Black pleaded guilty. The State also argues that even if the sentencing court did consider the burglary charge there was a factual basis to do so.

We 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. As we recently stated in State v. Messer, 306 N.W.2d 731 (Iowa 1981):

Although imposition of sentences is within trial court's discretionary power and will be set aside only for an abuse of discretion, see State v. Gibb, 303 N.W.2d 673, 687 (Iowa 1981), that discretion is not unlimited. In State v. Thompson, 275 N.W.2d 370 (Iowa 1979), the defendant originally was charged with second-degree burglary, but in accordance with a plea bargain the charge was reduced to third-degree theft. In imposing a sentence of imprisonment, trial court considered the fact a higher crime originally had been charged. Id. at 371. Remanding the case for resentencing, we stated:

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