State v. Jose, 00-0760.

• Citation: 636 N.W.2d 38
• Decision Date: 15 November 2001
• Docket Number: No. 00-0760.,00-0760.
• Parties: STATE of Iowa, Appellee, v. James Arthur JOSE, Appellant.
• Court: United States State Supreme Court of Iowa

636 N.W.2d 38

STATE of Iowa, Appellee, v. James Arthur JOSE, Appellant.

No. 00-0760.

Supreme Court of Iowa.

November 15, 2001.

Linda Del Gallo, State Appellate Defender and Patricia Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, for appellee.

LAVORATO, Chief Justice.

James Jose appeals from his judgment of sentence and court-ordered restitution imposed following his plea of guilty to forgery. He contends that the district court abused its discretion by considering unproven charges in sentencing him. He also challenges the restitution imposed. Finding no abuse of discretion regarding sentencing, we affirm on that issue. We remand with directions on the restitution issue.

I. Background Facts and Proceedings.

On January 12, 2000, the State charged Jose with one count of forgery and one count of malicious prosecution. See Iowa Code §§ 715A.2(1)(c), 715A.2(2)(a)(3), 720.6 (1999). On February 25, Jose pled guilty to the forgery charge.

During his plea hearing, Jose admitted he went into a Dahl's store in Des Moines, Iowa on January 2, 2000, and tried unsuccessfully to cash a check he was not entitled to cash. As part of Jose's plea agreement, the State agreed to dismiss the malicious prosecution charge and charges against Jose in several pending cases. The State recommended a five-year term of imprisonment to be served consecutively with a five-year term it was seeking in another pending case against Jose. Jose agreed to pay restitution.

The district court sentenced Jose on April 7. The court accepted the State's recommendation on sentencing and sentenced him accordingly. At the sentencing hearing, Jose agreed to pay restitution "on all matters," except one. The court incorporated Jose's agreement in its sentencing order, which stated:

Defendant agrees as part of the plea agreement to make restitution on all cases with the exception of AGCR 144077. The County Attorney shall request the Court for an Order to transport the Defendant back to Polk County for the [Victim Offender Reconciliation Program] session. In AGCR 144077, the State shall file a request for restitution and if the Defendant does not agree, he shall request a hearing on this matter.

Jose appealed on April 28. On June 1, the district court entered three separate supplemental restitution orders. A supplemental order dated September 8 shows a total restitution amount of $2242.09 ordered in the three previous supplemental orders.

II. Issues.

On appeal, Jose contends the district court erred in considering unproven charges in sentencing him. Additionally, he contends he is entitled to a restitution hearing with court-appointed counsel on the $2242.09 restitution ordered by the district court.

III. Sentence Imposed.

A district court may not consider an unproven or unprosecuted offense when sentencing a defendant unless (1) the facts before the court show the defendant committed the offense, or (2) the defendant admits it. State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Because the sentence imposed does not fall outside statutory limits, our review is for abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). Such abuse occurs when the district court "exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Peters, 525 N.W.2d 854, 859 (Iowa 1994) (quoting Schettler v. Iowa Dist. Court, 509 N.W.2d 459, 464 (Iowa 1993)).

On our review, a district court's sentencing decision enjoys a strong presumption in its favor. Peters, 525 N.W.2d at 859. To overcome the presumption, a defendant must affirmatively show that the district court relied on improper evidence such as unproven offenses. State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998).

To support his challenge to the sentence imposed, Jose points to the following statement from the district court during sentencing:

Mr. Jose, your reports indicate that you've got some abilities. You're not a stupid fellow.... If you weren't getting into so much trouble on a regular basis, I think I might even call you fairly bright based on what I've been reading about you. You're articulate. Clearly, you use these skills in a positive way while you're being a manager there for the pizza place. No small task running an operation like that.

I get a lot of folks coming through here that don't have those skills, frankly. But the flip side of it is that, gosh, you're 31 years old and you're still being a criminal. [N]either for your sake nor for your daughter's sake have you stopped making bad choices. You not only didn't take advantage of probation, you went out and got into more trouble.

It's the judgment of the court that defendant's adjudged guilty of the crime of forgery.... Defendant shall be imprisoned for a period not to exceed five years....

Sadly, Mr. Jose, I'm going to run the sentences consecutively, not [con]currently. I think in light of your additional crimes, in light of your prior record, I need to protect the community from further offenses by you. Mr. Jose, you've earned a—you've earned a consecutive sentence.

[P]robation is denied because of the defendant's prior criminal history and it would unduly lessen the seriousness of the offense.

(Emphasis added.)

For reasons that follow, we conclude this statement falls far short of an affirmative showing that the sentencing court relied on unproven charges in sentencing Jose. Jose has a history of numerous convictions, which the State highlighted for the sentencing court. When we consider the court's statement in context, we think the court considered Jose's prior convictions rather than unproven charges in sentencing him to imprisonment. Before pronouncing judgment, the court expressed its concern that, despite his apparent abilities, Jose was "still being a criminal." He had not "stopped making bad choices," and rather than taking "advantage of probation," he "went out and got into more trouble." Key to our determination is that immediately after the court used the phrase "additional crimes," the court stated its intention to protect the community, "in light of your prior record." (Emphasis added.) Additionally, in its written sentencing order the court stated, "[t]he granting of probation in this case is denied because of the Defendant's prior criminal history and because it would unduly lessen the seriousness of the offense." (Emphasis added.)

The challenged statement here does not rise to the level of affirmative showing made in cases where we have vacated and remanded based on the sentencing court's reliance on unproven charges. For example, in State v. Sinclair, the sentencing court stated the following when sentencing the defendant for first-offense OWI:

[The defendant] has been arrested on four occasions for [OWI] and that those three cases were dismissed by the County Attorney for one reason or another....

....

... I have to under the law sentence you as a first offense because that's what it was, and [ ] you weren't convicted on the other three. But I believe that I can take into consideration that there was a problem because you were arrested for some type of alcohol-related incident and that for some reason maybe they couldn't prove you guilty beyond a reasonable doubt and that's why those were dismissed, and the Court has to take that into consideration. That this is a first, but you've had three prior arrests.

582 N.W.2d 762, 765 (Iowa 1998). On appeal we concluded this statement "conclusively show[ed] that [the sentencing court] did consider the unproven offenses in sentencing the defendant." Id.

Other cases in which we vacated a sentence based on a similar affirmative showing include: State v. Gonzalez, 582 N.W.2d 515 (Iowa 1998), State v. Black, 324 N.W.2d 313 (Iowa 1982), and State v. Messer, 306 N.W.2d 731 (Iowa 1981). In Gonzalez, the affirmative showing was based on the sentencing court's statement that "the concession provided in the plea agreement provides for actually the dismissal of, what would probably be easily provable, five additional counts, so there is a substantial concession that's already been made to the defendant." 582 N.W.2d at 516.

In Black, the defendant pled guilty to a charge of indecent exposure in return for dismissal of a burglary charge. According to the minutes of testimony, the indecent exposure occurred after the defendant illegally gained entrance to the victim's home. 324 N.W.2d at 314. (The defendant stated that the victim voluntarily let him in her home.) We vacated the sentence imposed because the sentencing court considered the unproven burglary charge. Id. The affirmative showing supporting vacation of the sentence was based on the sentencing court's statement that it considered the factual circumstances out of which the indecent exposure charge arose, i.e., the unproven burglary. Id. at 314-15.

Finally, in Messer, the defendant and the State entered into a plea agreement. The defendant agreed to plead guilty to a second-degree burglary charge, and the State agreed to drop the prosecution of "several other burglaries." 306 N.W.2d at 732. The affirmative showing supporting this court's vacation of the defendant's sentence was the sentencing court's statement that it was "taking into consideration the fact that there were two other charges that were not prosecuted in this matter as part of a plea bargaining." Id.

Unlike the case before us, the sentencing courts in Sinclair, Gonzalez, Black, and Messer made specific reference to unproven charges. Here, the sentencing court referred only to "additional crimes," and discussed Jose's prior criminal history in explaining its decision to sentence Jose to imprisonment. When considered in context with the remainder of the court's explanation for imposing sentence, the reference to "additional crimes" is not an "affirmative showing" that the court considered unproven charges. W...