January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
CURTIS JACK ALFORD, Defendant-Appellant.
from the Iowa District Court for Polk County, Gregory D.
Brandt, District Associate Judge.
Alford appeals the sentence imposed following his
Alford plea. SENTENCE VACATED AND REMANDED.
C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Bower,
Background Facts and Proceedings.
November 15, 2015, Curtis Alford drove his Chevy Tahoe into a
Ford F-150 carrying the three complaining witnesses. The
F-150 was pushed out of the intersection onto a yard of an
adjacent home and rolled, landing on the driver's side.
Alford fled the scene on foot.
the F-150 was rolled back onto its wheels, two of the
complaining witnesses were able to exit the vehicle by
themselves. The third complaining witness had to be
extricated from the vehicle. Two of the Ford F-150 occupants
were transported to the hospital for treatment.
officers arrived and eventually located Alford. Officers
instructed him to stop and lie down on the ground, and he
complied. Alford's face was bleeding, and he had multiple
cuts on his arm. He was transported to the hospital for
treatment. While there, urine samples were obtained and sent
off for blood-alcohol content (BAC) testing. The results
later indicated a BAC of .065.
State charged Alford with leaving the scene of an injury
accident, in violation of Iowa Code section 321.261(2)
(2015), along with other charges. Alford entered a written
guilty plea pursuant to North Carolina v. Alford,
acknowledging "strong evidence of his
guilt" and agreeing the court "may consider
statements of counsel, the minutes of testimony and police
reports." After accepting the Alford plea
February 12, 2016, the court scheduled sentencing for March
11. Alford waived the reporting of the sentencing proceeding.
The court sentenced Alford to one year in jail with all but
forty-five days suspended. He was also placed on two
years' probation. Alford appeals.
Standard of Review.
review of the district court's sentencing decision is for
an abuse of discretion. See State v. Hill, 878
N.W.2d 269, 272 (Iowa 2016). "In applying discretion,
the court 'should weigh and consider all pertinent
matters in determining proper sentence, including the nature
of the offense, the attending circumstances, defendant's
age, character and propensities and chances of his reform. .
. . The punishment should fit both the crime and the
individual.'" State v. August, 589 N.W.2d
740, 744 (Iowa 1999) (citations omitted). Additionally, when
the district court imposes a sentence within the statutory
limit, the sentence is "cloaked with a strong
presumption in its favor." State v. Formaro,
638 N.W.2d 720, 724 (Iowa 2002).
court abuses its discretion when its decision is based on
"clearly untenable" grounds or the extent of
discretion exercised is "clearly unreasonable."
Hill, 878 N.W.2d at 272. A court's sentencing
rationale is "untenable when it is not supported by
substantial evidence or when it is based on an erroneous
application of the law." Id. Iowa Rule of
Criminal Procedure 2.23(3)(d) requires the district court to
provide "at least a cursory explanation" for the
sentence imposed to allow for appellate review of its
exercise of discretion. See State v. Jacobs, 607
N.W.2d 679, 690 (Iowa 2000). "[I]f the defendant waives
reporting of the sentencing hearing and the court fails to
state its reasons for the sentence in the written sentencing
order, the court has abused its discretion . . . ."
State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014).
Additionally, "[a] sentence will not be upset on
appellate review unless the defendant demonstrates an abuse
of discretion or a defect in the sentencing procedure such as
the trial court's consideration of impermissible
factors." State v. Witham, 583 N.W.2d 677, 678
(Iowa 1998) (citing State v. Wright, 340 N.W.2d 590,
592 (Iowa 1983)).
appeal, Alford contends the district court abused its
discretion by improperly considering Alford's alcohol use
as an aggravating factor in imposing judgment and sentencing.
He argues that because the record does not support that he
was legally intoxicated, admitted to intoxication, or
convicted of operating while intoxicated, the court could not
consider that factor at sentencing. He urges us to vacate his
sentence and remand for resentencing.
Alford was initially charged with multiple counts,
entered a plea deal with the State in which he agreed to
enter an Alford plea to the
leaving-the-scene-of-an-injury-accident charge. The remaining
charge was dismissed with the agreement Alford would pay
restitution. Alford's consumption of alcohol was never
prosecuted nor was he convicted of any crime related to
sentencing order, the district court stated:
Due to the seriousness of the accident and the fact that
alcohol was involved, the court finds that a period of jail
time is appropriate. Defendant's criminal history and the
fact that his license was suspended at the time of the
accident are important factors in the court's sentence.
the interaction between Alford and the officers and the
results of Alford's blood-alcohol test were described in
detail in the minutes of testimony, Alford never admitted to
any alcohol-related offenses and the State did not prove they
occurred. See Witham, 583 N.W.2d at 678 ("A
court may not consider an unproven or unprosecuted offense
when sentencing a defendant unless (1) the facts before the
court show the accused committed the offense, or (2) the
defendant admits it."). "We have approved using the
minutes to establish a factual basis for the charge to which
the defendant pleads guilty." State v. Black,
324 N.W.2d 313, 316 (Iowa 1982). "The sentencing court
should only consider those facts contained in the minutes
that are admitted to or otherwise established as true."
State v. Gonzales, 582 N.W.2d 515, 516 (Iowa 1998).
The State urges us to find the district court did not abuse
its discretion because Alford entered into an Alford
plea rather than admitting to any specific factual basis for
his guilty plea and additionally because there was
"substantial evidence in the record that alcohol was a
factor in the accident." We disagree, and we find the
district court should not have considered Alford's
alcohol consumption as a factor at sentencing.
"we cannot speculate about the weight the trial court
mentally assigned" the unproven facts, or "whether
it tipped the scales to imprisonment, " we vacate
Alford's sentence and remand for sentencing. See
State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981).
VACATED AND REMANDED.
 See 400 U.S. 25, 37 (1970)
("An individual accused of crime may voluntarily,
knowingly, and understandingly consent to the imposition of a
prison sentence even if he is unwilling or unable to admit
his participation in the acts constituting the
 The other charge appears to be an
unrelated third-degree theft charge.