from the Iowa District Court for Linn County, Ian K.
defendant appeals his sentence, arguing the district court
improperly considered unproven offenses.
C. Smith, State Appellate Defender, (until withdrawal) and
Robert P. Ranschau, Assistant Appellate Defender, for
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and May, JJ.
POTTERFIELD, PRESIDING JUDGE.
McGhee Jr. appeals his prison sentence on three counts of
theft in the second degree and one count of theft in the
fourth degree. McGhee maintains the sentencing court
considered unproven offenses when imposing sentence; he asks
that we remand for resentencing. We will not reverse a
sentence imposed "absent an abuse of discretion or some
defect in the sentencing procedure." State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
court may not consider an unproven or unprosecuted offense
when sentencing a defendant unless (1) the facts before the
court show the accused committed the offense, or (2) the
defendant admits it." State v. Witham, 583
N.W.2d 677, 678 (Iowa 1998). "If a court in determining
a sentence uses any improper consideration, resentencing of
the defendant is required." State v.
Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). That being
said, "a district court's sentencing decision enjoys
a strong presumption in its favor," so "a defendant
must affirmatively show that the district court relied on
improper evidence such an unproven offenses" in order
for us to reverse. State v. Jose, 636 N.W.2d 38, 41
the district court stated the following prior to declaring
Since being released after his plea, [McGhee] has committed
further crimes. Again, I know it[']s common vernacular,
but the phrase "pick up charges" drives me crazy.
You don't pick up charges, you commit offenses, and
that's what you've done here. You did it while you
were on release pending this.
claims the district court's reference to "further
crimes" shows the court considered pending charges to
which McGhee had neither pled guilty nor had otherwise been
State responds that the district court did not rely on any
unproven offenses. The State recognizes the
presentence-investigation (PSI) report contained a number of
offenses allegedly committed by McGhee between the date he
pled guilty to the offenses for which he was being
sentenced-on May 10, 2018-and the date he was being
sentenced-October 17, 2018. Of the twelve listed alleged
offenses, two showed as "dismissed" on the report.
The court noted it had a discussion with the parties prior to
going on the record and the court had been made aware that
five of the remaining ten charges were "being dismissed,
either as part of that plea or as part of the resolution of
this matter." Three remaining cases listed on the PSI
report were pending charges from Jones County, which the
court categorically stated it would not consider: "And,
again, those indicate here that they're pending, so
without any sort of disposition, I wasn't considering
those anyway, but I will make this note for the record."
remaining two charges, one already had a disposition at the
time of the report-a fifth-degree theft charge, for which a
$65 fine was imposed on August 31-and McGhee entered a
written guilty plea to the second right before the sentencing
hearing-a second-degree theft charge. The court was free to
consider both of these offenses during sentencing.
disavowing the consideration of unproven offenses or
allegations is not enough to unring the proverbial bell,
see State v. Lovell, 857 N.W.2d 241, 243 (Iowa
2014), here the court never specifically indicated it was
considering an offense that was unproven or to which McGhee
had not admitted. Without more than the court's statement
it was considering McGhee's "further
offenses"-of which there were properly two to
consider-McGhee has not met his burden of affirmatively
establishing error. See State v. Washington, 832
N.W.2d 650, 660 (Iowa ...