from the Iowa District Court for Polk County, Robert A.
defendant appeals the sentence imposed following his guilty
plea to second-degree theft. AFFIRMED.
C. Smith, Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellate.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Tabor and Bower, JJ.
Hernandez appeals the prison sentence imposed following his
plea to second-degree theft in Polk County. He contends the
district court impermissibly considered an unproven offense,
and he seeks resentencing. Finding the sentencing court
properly considered a proven offense, we affirm.
Facts and Prior Proceedings
police officers found Hernandez in possession of a stolen
truck in Polk County, the State charged him with first-degree
theft. Hernandez posted bond and was released on March 29,
2016. The State and Hernandez entered into a written plea
bargain in which Hernandez agreed to enter an Alford
to the lesser charge of second-degree theft and the State
agreed to dismiss an habitual offender enhancement. The
parties were "free to argue sentencing." On January
11, 2017, the court accepted Hernandez's plea, set
sentencing for February 23, 2017, and ordered a presentence
investigation (PSI) report.
report showed Hernandez had been convicted of possession of
controlled substances in 2014, with his appeal concluding
unsuccessfully in August 2015. Although he was ordered to
serve a ten-year prison term, no arrest warrant issued. The
PSI report also disclosed the State had charged Hernandez
with possession of a controlled substance, third or
subsequent offense, in Marshall County, on August 24, 2016.
Hernandez committed this new drug charge (FECR089657) while
free on bond in the Polk County theft case. Hernandez told
the PSI reporter his use of methamphetamine was a
contributing factor in the new drug charge. The PSI report
also stated a sentencing hearing in the drug case was
scheduled for February 27, 2017-four days after the Polk
County sentencing hearing for theft. The PSI reporter
recommended incarceration with a substance-abuse evaluation.
the sentencing hearing in the instant theft case, the State
recommended Hernandez serve a term of imprisonment, and
Hernandez sought a suspended sentence. The court followed the
recommendations of the State and the PSI reporter, ordering
Hernandez to serve an indeterminate five-year term of
incarceration consecutive to the sentence for his 2014 drug
conviction. Hernandez appeals.
Scope and Standard of Review
review sentencing decisions for legal error. See
Iowa R. App. P. 6.907. We will not vacate Hernandez's
sentence unless he is able to demonstrate an abuse of the
district court's discretion or a defect in the sentencing
procedure. See State v. Lovell, 857 N.W.2d 241,
242-43 (Iowa 2014). Because Hernandez's sentence is
within the statutory limits, he "must affirmatively show
that the district court relied on improper evidence such as
unproven offenses." State v. Jose, 636 N.W.2d
38, 41 (Iowa 2001).