Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.
The opinion of the court was delivered by: Sackett, S.J.
Defendant appeals his sentence for the offense of driving while revoked. AFFIRMED.
Considered by Vogel, P.J., Bower, J., and Sackett, S.J.*fn1
Frank Teague appeals contending the district court abused its discretion in sentencing him on the charge of driving while revoked. He contends it was an abuse of discretion for the court to consider evidence introduced in a criminal trial where Teague was acquitted and for the court not to review other factors such as his age and attending circumstances. The district court did not abuse its discretion, and we affirm.
On October 5, 2010, an Iowa State Patrol officer, Christopher Dawson, was driving on Interstate 80 in Scott County, Iowa, when he noticed a vehicle traveling at thirty-two miles per hour in a sixty-five mile-per-hour zone. He followed the vehicle and saw it swerve into the next lane and back again. Officer Dawson stopped the vehicle, which was driven by Frank Teague.
Teague was charged with operating while intoxicated (OWI), third offense, in violation of Iowa Code section 321J.2(2)(c) (2009), a class "D" felony, and driving while revoked, in violation of section 321J.21, a serious misdemeanor. The State also alleged Teague had committed the simple misdemeanors of failure to yield to an emergency vehicle, in violation of section 321.324; improper use of lanes, in violation of section 321.306; and failure to maintain a minimum speed, in violation of section 321.294.
Teague entered guilty pleas to driving while revoked, failure to yield to an emergency vehicle, improper use of lanes, and failure to maintain a minimum speed. The charge of OWI, third offense, was tried to a jury, and Teague was acquitted of that charge.
A sentencing hearing on Teague's conviction for driving while revoked was held on November 18, 2011. The State recommended that Teague be sentenced to 365 days in jail, with all but thirty days suspended. Teague requested that he be sentenced to 120 days in jail, with all of it suspended. In sentencing Teague the district court said:
Mr. Teague, my duty under the law is to review what is available to me in terms of community resources and to determine what the appropriate rehabilitative plan for you would be but to also consider that the public must be protected. In doing so, I look at the seriousness of the crime, the effect this crime has upon members of the community, your willingness to accept change and treatment, and what is available in the community to assist you in that process. In this entire thought process, I look first at the least restrictive alternatives and then proceed to the more restrictive alternatives.
In this case, I did have the benefit of sitting through the trial.*fn2 I got-was able to see the video. It shows your manner of driving. I was able to see the video that showed your behavior at the time of the stop. The Court does agree that your manner of driving was dangerous and provided a risk to members of the community. The Court also believes you were manipulative with the police officers at the time of the stop.
The court also said it considered Teague's driving record.
The court sentenced Teague to 365 days in jail, with all but ten days suspended. The court imposed a fine of $1000, but determined Teague could satisfy the fine by performing 190 hours of community service. Teague appeals his sentence for driving while revoked.
SCOPE OF REVIEW. We review a sentence in a criminal case for the correction of errors at law. State v. Kramer, 773 N.W.2d 897, 898 (Iowa Ct. App. 2009). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). One impermissible factor is the consideration of another criminal offense, unless the facts before the court show the defendant committed the offense. See State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). "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, ...