from the Iowa District Court for Marshall County, Kim M.
Riley, District Associate Judge.
Slinker appeals his sentence following his guilty plea to
involuntary manslaughter. SENTENCE AFFIRMED IN PART
AND VACATED IN PART AND REMANDED.
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
VAITHESWARAN, PRESIDING JUDGE.
claimed Wyatt Slinker owed him money. Slinker told the man to
get out of his face, swung at him, and hit him. The man fell
to the ground and eventually died.
State charged Slinker with involuntary manslaughter and
assault causing serious injury. See Iowa Code
§§ 707.5(1)(a), 708.2(4) (2017). Slinker pled
guilty to involuntary manslaughter, and the State dismissed
the assault charge. The district court adjudged Slinker
guilty and sentenced him to prison for a term not exceeding
five years. The court taxed costs to Slinker.
appeal, Slinker contends (1) the district court considered
improper sentencing factors, (2) his attorney was ineffective
in failing to object to victim impact statements from the
victim's uncles, and (3) the district court improperly
assessed costs against him on the dismissed charge.
"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." State v. Formaro, 638 N.W.2d 720,
725 (Iowa 2002). The sentencing decision "enjoys a
strong presumption in its favor." State v.
Jose, 636 N.W.2d 38, 41 (Iowa 2001). "To overcome
the presumption, a defendant must affirmatively show that the
district court relied on improper evidence such as unproven
argues the district court considered several unproven
charges: (a) "multiple Disorderly Conduct convictions,
when in reality the PSI established multiple Disorderly
Conduct arrests but only one Disorderly Conduct
conviction," (b) "a 2016 sentencing for
two 'assaults' against 'two separate
individuals,' when in reality the PSI revealed a 2016
arrest for two assaults against two separate
individuals but listed only one of those assault arrests as
resulting in a conviction," and (c) his
placement "on probation . . . a 'third time'
prior to the commission of the instant offense when, in
reality, the PSI established that [he] had been placed on
probation only two times prior to the instant
report contained two listings for disorderly conduct: (1)
"2/7/2012, PD, Marshalltown, IA Disorderly
Conduct-Abusive Epithets/Threat Gesture, SMCRO79915
3/13/2012, fine" and (2) "1/17/2015, SO, Tama
County, IA Disorderly Conduct-Loud or Raucous Noise,
SMSM011774." The district court referred to "a
couple of disorderly conduct convictions,"
notwithstanding the absence of a disposition line next to the
second listing. However, at the sentencing hearing, the
prosecutor stated Slinker had "a disorderly conduct
conviction in 2012 and in 2015." Slinker failed to
object to or correct this assertion. Under these
circumstances, the court could have reasonably relied on the
was also key. The court referred to the disorderly conduct
convictions during a general discussion of Slinker's
lengthy criminal history. The reference was analogous to the
court's mention of "additional crimes" in
Jose. See id. at 43 ("When considered in
context with the remainder of the court's explanation for
imposing sentence, the reference to 'additional
crimes' is not an 'affirmative showing' that the
court considered unproven charges."). We conclude
Slinker failed to make "an affirmative showing that the
sentencing court relied on unproven charges in
sentencing" him. See id. at 41; see also
State v. Johnson, No. 15-1853, 2016 WL 4803967, at *2
(Iowa Ct. App. Sept. 14, 2016) (noting PSI listed seventeen
arrests and only twelve convictions but court "did not
indicate any reliance on the seventeen arrests");
State v. Hildebrandt, No. 01-1581, 2003 WL 118251,
at *2 (Iowa Ct. App. Jan. 15, 2003) (court relied on
defendant's "extensive criminal history" and
defendant "simply has not affirmatively shown that the
sentencing court relied upon unprosecuted or unproven
offenses in imposing sentence, whether based on criminal
history data showing charges with no disposition after
eighteen months or other ...