Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, Judge.
Michael Graham appeals following his guilty plea, judgment, and sentence to the charges of domestic abuse assault, second offense, and burglary in the second degree.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Carlyle D. Dalen, County Attorney, and William Hoekstra, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
We must decide whether the district court considered an unproven charge at sentencing.
I. Background Proceedings
Michael Graham pled guilty to domestic abuse assault, second offense, and second-degree burglary. Prior to sentencing, a presentence investigation report was prepared and filed with the district court. At the sentencing hearing, Graham's attorney took issue with two convictions listed in the criminal history portion of the report. He asserted:
[T]here is an allegation listed as Floyd County on 12/27/03. The next one down on 2/7/04 is Cerro Gordo County, if the court notes, this exact same number. And we believe that those are not true. I have removed from the clerk's office FECR017895 from Cerro Gordo County, and it has something to do with Andre Wells, Senior; has nothing to do with my client. . . . .
And so we believe that neither of those should be considered because my client does not ever recall, first of all, doing—having a case in Floyd County; and, secondly, that he had probation revoked or that he was sentenced and probation terminated at that time.
Before imposing sentence, the district court checked the Iowa Courts Online electronic docketing system to determine the status of the Floyd and Cerro Gordo County cases flagged by Graham's attorney. The court found a listing in Floyd County but not in Cerro Gordo County. The court then stated,
I'd like to address Count II first before I address Count I. Count II is a charge of burglary, a Class C felony. Mr. Graham, I have reviewed your criminal history in regard to the PSI. The only reason I take note of the Iowa Courts Online was to try to clear up that number issue between Floyd County and here. You have a significant criminal history. You have a very significant criminal history in regard to assault. Obviously, the sentences that we've imposed on you until now have not been effective in changing that. The—there may be two unsuccessful probations, but there appears to be at least one. I'll take your word for the ...