Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
The opinion of the court was delivered by: Vaitheswaran, P.J.
A defendant contends that the district court considered improper factors in imposing sentence against him. AFFIRMED.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
La Lovan entered an Alford*fn1 plea to conspiracy to manufacture a controlled substance (methamphetamine) and second-degree arson. The district court sentenced him to a prison term not exceeding ten years on each count, with the terms to be served consecutively.
On appeal, Lovan contends that, in imposing sentence, the district court improperly considered his purchase of pseudoephedrine, a precursor used in the manufacture of methamphetamine. He specifically asserts, "The whole topic of improper use of pseudoephedrine was not a proper sentencing factor because it was not alleged in the trial information, not included in the charges pled to, and not admitted to by the defendant."
"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). When a sentence is challenged on the basis of improperly-considered, unproven criminal activity, "the issue presented is simply one of the sufficiency of the record to establish the matters relied on." State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000).
The record in this case included the minutes of testimony attached to the trial information. Not all minutes "may be relied upon and considered by a sentencing court." State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998). The court may only consider "those facts contained in the minutes that are admitted to or otherwise established as true." Id. (citation and internal quotation marks omitted). Those "portions of minutes . . . [that] are not necessary to establish a factual basis for a plea . . . are deemed denied by the defendant and are otherwise unproved and a sentencing court cannot consider or rely on them." Id.
Contrary to Lovan's assertion, the purchase of pseudoephedrine was not an uncharged crime but an integral component of the charge of conspiracy to manufacture methamphetamine to which Lovan entered an Alford plea. That crime required proof that "at least one conspirator committed an overt act evidencing a design to accomplish the purpose of the conspiracy by criminal means." Iowa Code § 706.1(3) (2011); accord State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999) (noting that "the State must show an overt act toward the accomplishment of the conspiracy"). The overt acts tying Lovan to the conspiracy were his repeated purchases of pseudoephedrine.
These purchases were documented in the minutes of testimony as follows:
[Police officers] retrieved the pseudoephedrine purchases, blocks, inquiries information from various pharmacies in the Polk County, Iowa, area, and that these records are attached hereto and incorporated by this reference. These records show that a number of purchases or attempts to purchase pseudoephedrine were made by the defendants herein and that at certain times, their attempts to purchase pseudoephedrine were blocked based on non-compliance with the pseudoephedrine purchasing requirements.
The minutes further connected these purchases to the manufacture of methamphetamine by citing anticipated testimony from officers "regarding the chemicals and equipment used to manufacture methamphetamine and . . . that the chemicals and equipment found in the possession of the defendant(s) are consistent with the manufacturing and conspiracy to manufacture methamphetamine." During the Alford plea colloquy, Lovan specifically admitted that the witnesses would testify as to the matters contained in the trial information and that he would likely be convicted based on that testimony. Through counsel, he also agreed that the minutes of testimony would be included as a part of the court's acceptance of his plea.
At the sentencing hearing, the prosecutor made reference to the pseudoephedrine purchases reflected in the minutes and a handwritten letter from Lovan explaining those purchases. The prosecutor stated in pertinent part:
Furthermore, Mr. Lovan to this day has failed to take responsibility for his actions involving this conspiracy. . . . Mr. Lovan has been observed in our community since August of 2010, ending in May of 2011 of his arrest of frequenting pharmacies here in our community to purchase pseudoephedrine for the use to manufacture a controlled substance.
Mr. Lovan states in a letter to the Court that he was verbally manipulated by Mr. Quang, his co-defendant, into purchasing pseudoephedrine. However, that excuse would be justified if it happened once, but Mr. Lovan purchased pseudoephedrine again, again, and ...