from the Iowa District Court for Bremer County, Peter B.
Newell, District Associate Judge.
Shadow challenges his sentence following his conviction for
operating while intoxicated, second offense.
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
Shadow pled guilty to operating while intoxicated (OWI),
second offense, in violation of Iowa Code section 321J.2(1)
and (2) (2016), an aggravated misdemeanor. The district court
sentenced Shadow to prison for an indeterminate term, not to
exceed two years, to be served in an OWI Prison Program. In
this appeal, Shadow challenges his sentence, contending the
district court relied on impermissible sentencing factors.
review sentencing decisions for correction of errors at law.
See State v. Witham, 583 N.W.2d 677, 678 (Iowa
1998). A sentencing decision will not be reversed absent a
showing of an abuse of discretion or some defect in the
sentencing proceeding. See State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002). Reliance on an impermissible
sentencing factor is a defect in the sentencing proceeding.
See id. One inappropriate matter the sentencing
court may not consider is an unproven or unprosecuted
offense. See State v. Jose, 636 N.W.2d 38, 41 (Iowa
2001). Because of the strong presumption in favor of a
district court's sentencing decision, a defendant must
make an affirmative showing the sentencing court relied on an
unproven offense. See id. We will neither assume nor
infer the district court relied on an impermissible factor
without clear evidence in the record to the contrary. See
Formaro, 638 N.W.2d. at 725.
was charged with OWI, second offense, resulting from a
February 2016 incident. He pled guilty to the offense, and
his plea was accepted at a plea hearing. Sentencing was set
for July 11, 2017, and preparation of a presentence
investigation (PSI) report was ordered. Shadow was charged
with driving while barred, resulting from a December 2016
incident. He pled guilty to the offense at a July 11, 2017
plea hearing, and the court accepted his plea. Shadow's
OWI and driving-while-barred sentencing hearing immediately
followed. The court entered separate judgments and sentences
on each offense. Shadow filed notices of appeal in both
matters. On appeal, Shadow only challenges his OWI sentence-
specifically, the prison sentence and placement in an OWI
the sentencing portion of the hearing, the prosecutor related
Shadow's criminal record to the court. The prosecutor
also stated: "Since [Shadow] has been arrested for the
charge of OWI-Second, [he] has been arrested six times. The
majority of them are traffic charges, but it shows a complete
disregard for the law." In sentencing Shadow to prison
and the OWI Prison Program on the OWI charge, the court
I think based on your prior criminal history a prison
sentence is merited. I think that as long as the Department
of Correctional Services thinks that you can benefit from the
treatment aspect of incarceration, it's worth giving that
a try to make sure that you don't come back to court. I
would also say that I am influenced in this decision by the
ongoing criminal activity that you seem to be involved in;
you've got a number of pending charges. I guess
that's not really a factor for the court to consider, um,
but I would take into consideration this driving while barred
that you committed after this matter was pending.
the sentencing court's statement that it was
"influenced in this decision by the ongoing criminal
activity that you seem to be involved in; you've got a
number of pending charges" that Shadow asserts are the
impermissible factors considered by the court. "It is a
well-established rule that a sentencing court may not rely
upon additional, unproven, and unprosecuted charges unless
the defendant admits to the charges or there are facts
presented to show the defendant committed the offenses."
Formaro, 638 N.W.2d at 725. Shadow contends the
court's self- correction-"I guess that's not
really a factor for the court to consider"-was not
sufficient to remove the taint of referencing unproven
charges. We agree.
the sentencing court attempted to disclaim its reference to
the pending charges, we cannot speculate about the weight the
sentencing court gave to them. Since we cannot evaluate their
influence, we must strike down the sentence. State v.
Lovell, 857 N.W.2d 241, 243 (Iowa 2014). We therefore
vacate Shadow's OWI sentence and remand the case to the
district court for resentencing before a different judge
consistent with this opinion. See id.
VACATED AND CASE ...