Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.
The opinion of the court was delivered by: Vaitheswaran, P.J.
A defendant contends the district court (1) considered unproven charges in sentencing him and (2) violated his Fifth Amendment right against self-incrimination by considering admissions that he made to his substance abuse evaluator. JUDGMENT AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
We must decide (1) whether the district court considered unproven charges in sentencing the defendant and (2) whether the court violated the defendant's Fifth Amendment right against self-incrimination "by considering admissions [he] made . . . to his substance abuse evaluator."
I. Background Facts and Proceedings
Cody Sutton was arrested and charged with possession of cocaine. Following his arrest, Sutton voluntarily obtained a substance abuse evaluation.
Sutton later pled guilty to possession of cocaine. The district court ordered him to "obtain a substance abuse evaluation at his . . . own expense before the date and time set for sentencing" and to "file a copy of said evaluation with the court." In response to the court directive, Sutton filed the evaluation he obtained following his arrest.
At the sentencing hearing, Sutton asked for a deferred judgment. The district court denied the request and imposed a 365-day jail term, with all but two days suspended. The court also placed him on probation for twelve to twenty-four months. In articulating reasons for the sentence, the district court made reference to other acts, as follows:
Well, the fact that [Sutton] admitted that he was-had used cocaine and that he was operating a motor vehicle I don't-he's not charged with operating while intoxicated so I haven't considered that he is charged or convicted of that offense, but the simple fact that he was operating a motor vehicle after having consumed cocaine, I have taken that into consideration as those are aggravating circumstances in this case.
The court also made reference to the substance abuse evaluation as follows:
I believe the sentence is appropriate based upon the nature and circumstances of this offense as well as you as an offender and the information offered in the substance abuse evaluation. It would certainly indicate from the information in the substance abuse evaluation that this is not something out of character for you. It says in there that you've been experimenting with cocaine use off and on for close to eight years. So I don't believe a deferred judgment is warranted on the basis of the circumstances of this offense or for those reasons as well.