Appeal from the Iowa District Court for Bremer County, Christopher C. Foy, Judge.
Defendant appeals the sentences imposed for his convictions for six counts of sexual abuse in the third degree.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, and Kasey E. Wadding, County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Danilson, JJ.
Ryan Porath appeals the sentences imposed for his convictions for six counts of sexual abuse in the third degree, three in violation of Iowa Code sections 709.1 and 709.4(2)(b), and three in violation of sections 709.1 and 709.4(2)(c)(4) (1997). On appeal, he maintains the district court abused its discretion by relying on improper factors in imposing his sentence, namely unproven claims and unavailable sentencing options. He asks that we remand for resentencing. Because we find the district court did consider impermissible factors, we vacate the sentence and remand for resentencing.
I. Background Facts and Proceedings.
On June 15, 2012, the State filed a trial information against Porath, charging him with six counts of sexual abuse in the third degree. On January 18, 2013, Porath entered a plea of not guilty. However, seven days later, pursuant to a plea agreement, Porath tendered a written guilty plea to each of the six counts alleged in the trial information. As part of the plea agreement, the State agreed to recommend concurrent ten-year sentences for each of the charges.
On February 8, 2013, the plea was accepted by the court. At that time, a pre-sentence investigation (PSI) was ordered and sentencing was set for April 1, 2013.
At sentencing, the court stated:
Mr. Porath, I've taken time to review your file. I've looked at the presentence investigation report. And I'm presented with two very different sides of one person.
Obviously you are a person capable of good. There are many letters of support written on your behalf describing the positive things that you've done, the positive parts of your life. The cr— On the other side are the crimes that you've committed against [P.E.]. And I would say that as good as, um some of the things you've done in your life, what you did to [P.E.] was equally as horrible.
And if I understand the recommendation being made by the probation officer who prepared the PSI, he is proposing that you would receive consecutive sentences on the first three counts. It's not clear whether he's saying then the other three counts should be just concurrent to each other but are also concurrent to the other sentence. In any event, it's being ...