State v. Slinker, 17-1376

• Decision Date: 18 July 2018
• Docket Number: No. 17-1376,17-1376
• Citation: 922 N.W.2d 106 (Table)
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Wyatt K. SLINKER, Defendant-Appellant.
• Court: Iowa Court of Appeals

922 N.W.2d 106 (Table)

STATE of Iowa, Plaintiff-Appellee,
v.
Wyatt K. SLINKER, Defendant-Appellant.

No. 17-1376

Court of Appeals of Iowa.

Filed July 18, 2018

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

VAITHESWARAN, Presiding Judge.

A man claimed Wyatt Slinker owed him money. Slinker told the man to get out of his face, swung at him, and hit him. The man fell to the ground and eventually died.

The State charged Slinker with involuntary manslaughter and assault causing serious injury. See Iowa Code §§ 707.5(1)(a), 708.2(4) (2017). Slinker pled guilty to involuntary manslaughter, and the State dismissed the assault charge. The district court adjudged Slinker guilty and sentenced him to prison for a term not exceeding five years. The court taxed costs to Slinker.

On appeal, Slinker contends (1) the district court considered improper sentencing factors, (2) his attorney was ineffective in failing to object to victim impact statements from the victim’s uncles, and (3) the district court improperly assessed costs against him on the dismissed charge.

I . "It is a well-established rule that a sentencing court may not rely upon additional, unproven, and unprosecuted charges unless the defendant admits to the charges or there are facts presented to show the defendant committed the offenses." State v. Formaro , 638 N.W.2d 720, 725 (Iowa 2002). The sentencing decision "enjoys a strong presumption in its favor." State v. Jose , 636 N.W.2d 38, 41 (Iowa 2001). "To overcome the presumption, a defendant must affirmatively show that the district court relied on improper evidence such as unproven offenses." Id.

Slinker argues the district court considered several unproven charges: (a) "multiple Disorderly Conduct convictions, when in reality the PSI established multiple Disorderly Conduct arrests but only one Disorderly Conduct conviction ," (b) "a 2016 sentencing for two ‘assaults’ against ‘two separate individuals,’ when in reality the PSI revealed a 2016 arrest for two assaults against two separate individuals but listed only one of those assault arrests as resulting in a conviction ," and (c) his placement "on probation ... a ‘third time’ prior to the commission of the instant offense when, in reality, the PSI established that [he] had been placed on probation only two times prior to the instant offense."

The PSI report contained two listings for disorderly conduct: (1) "2/7/2012, PD, Marshalltown, IA Disorderly Conduct—Abusive Epithets/Threat Gesture, SMCRO79915 3/13/2012, fine" and (2) "1/17/2015, SO, Tama County, IA Disorderly Conduct—Loud or Raucous Noise, SMSM011774." The district court referred to "a couple of disorderly conduct convictions," notwithstanding the absence of a disposition line next to the second listing. However, at the sentencing hearing, the prosecutor stated Slinker had "a disorderly conduct conviction in 2012 and in 2015." Slinker failed to object to or correct this assertion. Under these circumstances, the court could have reasonably relied on the prosecutor’s representation.

Context was also key. The court referred to the disorderly conduct convictions during a general discussion of Slinker’s lengthy criminal history. The reference was analogous to the...