from the Iowa District Court for Polk County, Carol S. Egly,
District Associate Judge.
Vogel appeals his sentence following his guilty plea to
C. Smith, State Appellate Defender, for appellant.
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.
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.
Background Facts and Proceedings.
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.
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.
Scope and ...