Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.
A defendant contends that the sentencing court improperly considered an unproven charge.
Lucas J. Richardson of Terrill, Richardson, Hostetter & Madson Law Offices, Ames, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Stephen Holmes, County Attorney, and Jordan Roling, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
Harold Wulf admitted to planting a camera and microphone in the common wall of a duplex and intercepting his neighbors' conversations. Wulf pled guilty to unlawfully intercepting a communication. See Iowa Code § 808B.2(1)(a) (2009) (stating a person commits a class "D" felony if the person "[w]illfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, a wire, oral, or electronic communication"). At sentencing, the prosecutor recommended a suspended five-year prison term and probation. The defense attorney agreed with the recommendation, as did the preparer of a presentence investigation report.
The district court declined to suspend the prison term, as recommended, reasoning as follows:
[Y]ou've now pled guilty to audio and videotaping the son, the five-year-old son of your neighbors, and to say that causes the Court some concern is to put things mildly.
Mr. Wulf, you might have a great deal of support in the community, but the Court cannot ignore the danger that you pose to the community, especially to the victim of this offense, and I cannot imagine anything more invasive and intrusive to a five-year-old than what you did, and I am not convinced that a suspended prison term is going to protect our community from further offenses from you.
The court imposed a five-year indeterminate prison term.
On appeal, Wulf contends he never admitted "to videotaping visual images or to specifically recording [the neighbors'] five year old child." He argues that, in citing this information, the district court impermissibly considered an unproven or unadmitted charge. See State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002) ("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."). We agree.
The district court's reference to videotaping of the neighbors' five-year-old son may have borne on an invasion of privacy count that was included in the trial information, but it had no bearing on the interception count to which Wulf pled guilty. On that count, the court explained the elements as follows:
[T]here are some different ways that this crime can be committed, but I think the ones that apply to you are that, first of all you willfully intercepted a communication, and I believe that the allegation is that it was an oral communication. So the act that you did first of all would have had to be done willfully, in other words you had to know you were doing it and not doing it by mistake, and secondly that you—that the communication was an oral communication, and well ...