from the Iowa District Court for Black Hawk County, Andrea J.
defendant appeals his sentence, asserting district court
relied upon impermissible information.
C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Bower, J., and Blane, S.J.
Quintorey Kemp appeals his sentence, claiming the district
court improperly relied upon a jury's guilty verdict in
another case, where judgment had not yet been entered, to
determine the sentence to impose in this case. For the
reasons set out below, we find no error and affirm.
Background Facts and Procedure.
March 24, 2014, Kemp was charged by trial information with
robbery in the first degree, willful injury causing serious
injury, and intimidation with a dangerous weapon with intent,
in violation of Iowa Code sections 708.4(1), 708.6, and 711.2
(2014). Kemp waived a jury and proceeded to a
bench trial on January 15, 2016. The court found him guilty
of all three charges on March 21.The court ordered a
presentence investigation (PSI) report and set sentencing for
May 16. On April 21, the department of correctional services
submitted a PSI report on Kemp as to this case, as well as
another case involving him, Black Hawk County case number
FECR208562. The report contained details of both crimes and
sentencing recommendations as to both.
sentencing, Kemp and his attorney reviewed the PSI report. At
sentencing, upon inquiry by the court, Kemp's attorney
advised that they had no additions or corrections to the PSI.
Kemp was sentenced to imprisonment not to exceed twenty-five
years on the robbery charge and ten years on the other two
charges, all to be served concurrently. Because Kemp was a
juvenile at the time of the offense, the court declined to
impose the mandatory minimum sentence for the robbery charge.
At sentencing the court stated:
I also don't find appropriate, given the second case,
given the jury's finding of guilt for the crime of
assault while participating in a felony, I also don't
find that probation is appropriate because of that. I
don't find that deferred judgment is appropriate.
Suspended sentence isn't appropriate. Suspended sentence
with residential facility placement is not appropriate.
On appeal, Kemp argues the sentencing court abused its
discretion by considering the jury's guilty verdict of
assault while participating in a felony in FECR208562
because, although a jury verdict of guilt had been entered,
Kemp was still awaiting sentencing-thus there was no final
judgment and the court should not have relied on the verdict.
Scope of Review.
court reviews the district court's sentence for an abuse
of discretion. State v. Barnes, 791 N.W.2d 817, 827
(Iowa 2010). An abuse of discretion is found when the court
exercises its discretion on grounds clearly untenable or to
an extent clearly unreasonable. Id. "A district
court's ground or reason is untenable when it is not
supported by substantial evidence or when it is based on an
erroneous application of the law. When a sentence is not
mandatory, the district court must exercise its discretion .
. . ." State v. Hill, 878 N.W.2d 269, 272 (Iowa
2016) (internal citations and marks omitted).
"Sentencing decisions of the district court are ...