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State v. Hernandez

Court of Appeals of Iowa

November 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ERIC HERNANDEZ, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.

         A defendant appeals the sentence imposed following his guilty plea to second-degree theft. AFFIRMED.

          Mark C. Smith, Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellate.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Tabor and Bower, JJ.

          TABOR, Judge.

         Eric 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.

         I. Facts and Prior Proceedings

         After 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 plea[1] 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.

         The PSI 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.

         During 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.

         II. Scope and Standard of Review

         We 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).

         III. ...


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