Appeal from the Iowa District Court for Scott County, Thomas H. Preacher, District Associate Judge.
The opinion of the court was delivered by: Mullins, J.
A defendant appeals his conviction for assault causing bodily injury, asserting the court abused its discretion during trial and at sentencing and his counsel rendered ineffective assistance. SENTENCE VACATED AND CASE REMANDED.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
The defendant, Maruion McDowell, appeals from his conviction for assault causing bodily injury, in violation of Iowa Code sections 708.1 and 708.2(2) (2011). He contends the district court abused its discretion in two ways: (1) considering uncharged conduct in rendering its sentence and (2) preventing him from presenting his alibi defense. He also asserts his trial counsel rendered ineffective assistance in failing to object to testimony from the victim and a police officer, which he claims constituted inadmissible hearsay and violated the Confrontation Clause. As we find the district court abused its discretion in considering uncharged conduct in sentencing McDowell, we vacate his sentence and remand for resentencing. We affirm on all other claims.
I. BACKGROUND FACTS AND PROCEEDINGS.
The victim, Brett Bowkey, decided to go out to the clubs with his co- worker, Nekisha Phillips, and her friend, Winter. Bowkey rode his bicycle over to Phillips's house where he waited for Phillips and Winter to finish getting ready. While there, he met Phillips's boyfriend, McDowell. McDowell was planning to go out to the clubs with his friends and cousins, while Bowkey, Phillips, and Winter left separately. The two groups eventually ended up at the same bar, and Phillips became angry when she believed she saw McDowell flirting with another girl.
Bowkey, Phillips, and Winter were hungry when they finally left the bar, so Bowkey offered to make them food at his home. Phillips continued her argument with McDowell over the phone while at Bowkey's house. After eating, Bowkey, Winter, and Phillips drove back to Philips's house to retrieve Bowkey's bicycle. When they arrived, Bowkey noticed his bicycle was in ruins. The rims were bent, the tires were ruined, and his seat was cut up. Bowkey decided to confront McDowell, who was inside Phillips's house, about the condition of his bicycle. But before he could knock on the door, both Winter and Phillips yelled out of the car to not confront McDowell because he might "have something." Bowkey, remembering that his bike seat had been cut, decided not to confront McDowell but instead to load the bicycle in the trunk of Winter's car and leave.
Bowkey was able to get the bicycle in the trunk when Phillips and Winter yelled at him to get in the car because McDowell was coming. McDowell began accusing Bowkey of sleeping with Phillips and punched Bowkey in the left side of his jaw, knocking him to the ground. Bowkey got up only to be punched again in the temple and the throat. Bowkey decided to stay down, and McDowell then ran off.
The police were called, and Officers Hatfield and Bowers reported to the scene. Phillips did not stay around to talk to the police because she had a warrant for her arrest. However, she did speak with Officer Bowers over the phone. Bowkey refused medical treatment and did not permit the police to take pictures of his injuries. Bowkey had a swollen jaw for two or three days.
A trial information was filed on October 5, 2011, charging McDowell with assault causing bodily injury. McDowell pleaded not guilty, and the case proceeded to trial on December 19, 2011. The morning of trial defense counsel alerted the court and the State for the first time that he intended to call two witnesses to present an alibi defense. The State objected due to the late notice, and the court found there was no good cause to justify the late notice of the alibi defense. The court permitted McDowell to testify as to his whereabouts at the time of the crime but precluded him from presenting witnesses to corroborate his testimony.
After hearing the testimony of Bowkey, Officer Hatfield, and McDowell, the jury returned a verdict of guilty as charged. On January 27, 2012, the court sentenced McDowell to serve 120 days in jail, with all but fifteen suspended. McDowell was placed on unsupervised probation for up to one year, ordered to pay a $315 fine plus costs and applicable surcharges, and ordered to reimburse the State for court-appointed attorney fees not to exceed $462. The sentencing hearing was unrecorded, but in the sentencing order, the court wrote out the "reasons for this sentence," which included boilerplate, type-written language and the following handwritten addition: "Defendant has 1996 gang participation conviction and [possession of a controlled substance] with intent conviction in 1996; facts of case show unprovoked assault and (uncharged) destruction of property." From this sentence, McDowell appeals.
McDowell first asserts the district court erred in considering uncharged conduct-destruction of property-in rendering its sentencing decision, and therefore, his case must be remanded for resentencing. We agree.*fn1
We review a district court's sentence for correction of errors at law. State v. Sailer, 587 N.W.2d 756, 758 (Iowa 1998). The sentence will only be disturbed if the defendant demonstrates the trial court abused its discretion or there is a defect in the sentencing procedure, such as the consideration of an impermissible factor. Id. at 759. Because a sentence within statutory limits enjoys a strong presumption in its favor, there must be an affirmative showing the district court relied on improper evidence. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001). "A court may not consider an unproven or unprosecuted offense when sentencing a defendant unless (1) the facts before the court show the accused committed the offense, or (2) the defendant admits it." Gonzalez, 582 N.W.2d at 516. The issue presented to us is one of the sufficiency of the record to establish the matters relied on. State v. Grandberry, 619 N.W.2d 399, 401 ...