from the Iowa District Court for Cerro Gordo County, Colleen
D. Weiland, Judge.
review from the Iowa Court of Appeals.
State seeks further review of a court of appeals decision
reversing the sentence of the defendant.
C. Smith, State Appellate Defender, Melinda J. Nye, Assistant
Appellate Defender, and Nicholas Jones, Law Student, for
J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Gina
A. Jorgensen, Assistant County Attorney, for appellee.
appeal, for the first time, the defendant raised the issue
that the court's use of the Iowa Risk Revised risk
assessment tool (IRR) in sentencing the defendant violated
his due process rights. The defendant also claimed the court
used an unproven or unprosecuted offense when it sentenced
him. We transferred the case to the court of appeals. The
court of appeals reversed the defendant's sentence
finding there is "no legislative authority supporting
the use of the IRR at sentencing." The State asked for
further review, which we granted. On further review, we find
the court of appeals erred in reaching an issue not preserved
by the defendant. We further find the defendant failed to
preserve error on his due process claim and the record is
insufficient to reach the due process claim on direct appeal.
We also find the district court did not use an unproven or
unprosecuted offense when it sentenced the defendant.
Therefore, we vacate the court of appeals decision finding
there is "no legislative authority supporting the use of
the IRR at sentencing" and affirm the judgment of the
Background Facts and Proceedings.
December 31, 2016, Montez Guise went to his ex-girlfriend
M.J.'s Mason City apartment and entered the premises. At
that time, there was a valid no-contact order between Guise
and M.J., with M.J. being the protected party. Guise left the
apartment, taking the apartment key and M.J.'s rent money
with him. M.J. barricaded the door, fearing Guise would
return. Guise returned shortly thereafter, kicked down
M.J.'s apartment door, and started breaking items in the
dispatcher sent Mason City police officers to M.J.'s
apartment for a welfare check after receiving reports that
M.J. and her friend Gloria, who was also inside the
apartment, were in danger. When officers arrived, Guise
prevented M.J. and Gloria from answering the door. The
officers kicked down the door and arrested Guise as he was
trying to escape out of an apartment window.
State charged Guise with burglary in the second degree, a
class "C" felony, in violation of Iowa Code
sections 713.1 and 713.5 (2017) and false imprisonment, in
violation of Iowa Code section 710.7, a serious misdemeanor.
On February 6, 2017, Guise pled guilty to burglary in the
second degree as part of a plea agreement. The court released
him to the department of correctional services on pretrial
release pending sentencing.
the plea agreement, for Guise's burglary charge, the
State recommended a ten-year prison sentence, suspended;
probation; and a one-thousand dollar fine, suspended. In
exchange for his plea, the State dismissed the false
imprisonment and related simple misdemeanors, and refrained
from asserting the habitual offender enhancement.
February 23, the department of corrections reported Guise had
violated his conditions of release. The department of
corrections reported Guise failed to show up for a probation
appointment, violated his no-contact order, resisted arrest,
and was in possession of drug paraphernalia. The State
charged him with the additional charge of interference with
official acts, a serious misdemeanor, stemming from his
arrest on the violation of the no-contact order. Guise pled
guilty to this charge prior to sentencing.
March 14, the Mason City probation/parole office filed
Guise's presentence investigation report (PSI), which it
had prepared at the direction of the district court. The PSI
stated the interviewer completed an IRR. The IRR recommended
Guise be supervised at an intensive level. Guise did not
object to the district court's use of the PSI at
sentencing and made only one correction after reviewing the
PSI-his explosive attitude only refers to him while on
March 20, the court sentenced Guise. At the sentencing
hearing, the State recommended the sentence in the plea
agreement for the burglary charge. For Guise's
interference with official acts resulting in the bodily
injury charge, the State recommended one year in jail,
suspended; probation for two years; and fines. In other
words, the State recommended no jail time.
district court rejected the sentence recommended by the State
for the burglary charge and sentenced Guise to prison for an
indeterminate term, not to exceed ten years. For the
interference with official acts charge, the district court
also rejected the sentence recommended by the State and
sentenced Guise to ninety days in jail, to be served
concurrently with the burglary sentence.
filed a motion of appeal from the final judgment and
sentencing. We transferred the case to the court of appeals.
The court of appeals vacated the district court's
sentence and remanded, holding there is "no legislative
authority supporting the use of the IRR at sentencing."
The State requested further review, which we granted.