Appeal from the Iowa District Court for Cerro Gordo County, Rustin T. Davenport, Judge.
A defendant appeals his sentence contending the district court considered an improper sentencing factor.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Carlyle D. Dalen, County Attorney, for appellee.
Considered by Vogel, P.J., and Mullins and McDonald, JJ.
Anthony Hopkins appeals the sentence imposed following his Alford plea to attempted burglary in the third degree, in violation of Iowa Code sections 713.2 and 713.6B(1) (2011). He was originally charged with first-degree burglary and first-degree harassment. In rendering its sentencing decision, the district court stated:
The law of Iowa requires the court impose a sentence that will best provide for your rehabilitation, protect the community, and deter others from committing this crime. The court thinks that both sides have made points regarding the recommendations regarding sentencing. The court is mindful of the matter that the defendant's guilty verdict has been entered or—or judgment of guilt has been entered is a reduced charge. The court is also mindful of the co-defendant although, as the State says, that the co-defendant does not have the same type of criminal history as—as Mr. Hopkins has.
After considering all those factors, the court finds that you should be sentenced to 180 days in the Cerro Gordo County Jail. The minimum fine of $625 will be imposed plus law enforcement surcharge for $125 plus surcharges.
(Emphasis added.) Hopkins asserts it was improper for the court to consider the fact he entered a plea to a reduced charge. He asks that his sentence be vacated and his case remanded for resentencing.
"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. Sailer, 587 N.W.2d 756, 758–59 (Iowa 1998). There is a strong presumption the district court properly exercised its discretion, and to overcome that presumption, "'there must be an affirmative showing the court relied on . . . improper evidence.'" Id. at 762 (citation omitted).
A sentencing court may not . . . impose a severe sentence for a lower crime on the ground that the accused actually committed a higher crime unless the facts before the court show the accused committed the higher crime or the defendant admits it even if the prosecutor originally charged the higher crime and reduced the charge.
State v. Thompson, 275 N.W.2d 370, 372 (Iowa 1979).
In Thompson, the defendant had been originally charged with second-degree burglary but pled guilty to third-degree theft. Id. at 371. In sentencing the defendant, the court stated, in part: "It is the opinion of the Court that a reduction of the charge from a class C felony to an aggravated misdemeanor does not justify the Court's allowance of probation or a deferred sentence." Id. The supreme court interpreted this statement to mean the sentencing judge thought he was not justified in granting probation or a deferred sentence because of the higher original charge and the subsequent reduction. Id. at 372. The case was remanded so the ...