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State v. Vogel

Court of Appeals of Iowa

December 19, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
CHRISTOPHER DAVID VOGEL, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.

         Christopher Vogel appeals his sentence following his guilty plea to animal abuse.

          Mark C. Smith, State Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Potterfield and Doyle, JJ.

          DANILSON, CHIEF JUDGE.

         Christopher Vogel appeals from his sentence following his guilty plea to animal abuse, in violation of Iowa Code section 717B.2 (2017), an aggravated misdemeanor. Vogel contends the sentencing court abused its discretion by considering improper factors in imposing his sentence and entered an illegal sentence when it ordered him to pay court costs associated with dismissed charges. Because Vogel has not affirmatively shown the court considered improper factors, we find no abuse of discretion. However, we vacate the portion of the sentencing order imposing an obligation to pay the costs of dismissed charges and remand for entry of a corrected sentencing order.

         I. Background Facts and Proceedings.

         On September 27, 2017, Vogel was charged with animal abuse and criminal mischief in the fourth degree in case number AGCR307687-both counts stemming from the same incident. On November 30, Vogel reached a plea agreement with the State, which provided: (1) Vogel would plead guilty to animal abuse; (2) a pre-sentence investigation (PSI) would be completed; (3) the parties were free to argue for any allowable sentence; (4) Vogel would pay "[a]ll applicable surcharges and costs, including any court-appointed attorney fees"; (5) "[t]he State will dismiss count II [criminal mischief] of AGCR307687 and SMAC369966 upon sentencing"; (6) restitution; and (7) any other conditions the court may impose. The court accepted Vogel's written guilty plea and ordered a PSI.

         On February 1, 2018, the court sentenced Vogel to prison for two years, with credit for time served in jail awaiting trial, and suspended a $625 fine plus surcharge. Of the sentencing considerations set out in Iowa Code section 907.5, the court found the following factors to be the most significant in determining Vogel's sentence: (1) the nature and circumstances of the crime; (2) the defendant's criminal history, and; (3) the defendant's propensity for further criminal acts. The court also found "[i]ncapacitation [sic] is warranted based on Defendant's history and stated desire not to be on probation as well as the nature of this crime." The court ordered restitution to be determined at a later date, entered a no-contact order, and ordered DNA profiling.

The court also ordered:
Pursuant to the plea agreement and upon the recommendation of the State, the following counts/cases are dismissed: COUNT II: CRIMINAL MISCHIEF IN THE FOURTH DEGREE; NTA0794542; SMAC369966. Pursuant to the plea agreement Defendant is ordered to pay court costs on these counts/cases and if restitution is due on any of these counts/cases, Defendant is ordered to pay such restitution.
Vogel appeals.

         II. Scope and ...


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