from the Iowa District Court for Dubuque County, Mark T.
Hostager, District Associate Judge.
Koppes appeals her sentence following her guilty plea to
interference with official acts resulting in bodily injury.
Christopher C. Fry and Alyssa M. Carlson of O'Conner
& Thomas, P.C., Dubuque, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
VAITHESWARAN, PRESIDING JUDGE.
State originally charged Tasha Koppes with the aggravated
misdemeanor crime of "assault on persons in certain
occupations-bodily injury." See Iowa Code
§ 708.3A(3) (2017). Koppes pled guilty to interference
with official acts resulting in bodily injury, a serious
misdemeanor. See id. § 719.1(1)(c). The
district court adjudged her guilty and sentenced her to 365
days in jail with all but ninety days suspended.
appeal, Koppes contends the court relied on impermissible
factors in sentencing her. Specifically, she asserts the
court "improperly considered the aggravated misdemeanor
offense with which [she] was originally charged when issuing
its sentence for the serious misdemeanor to which [she] pled
guilty" and "improperly based [her] sentence on
unprosecuted and unproven substance-related offenses."
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." See State v.
Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Where a
court considers an unproven or unprosecuted offense without a
showing of or admission to the underlying facts, we will
vacate the sentence and remand the case for resentencing.
See State v. Sinclair, 582 N.W.2d 762, 765
person commits interference with official acts when the
person knowingly resists or obstructs anyone known by the
person to be a peace officer . . . in the performance of any
act which is within the scope of the lawful duty or authority
of that officer." Iowa Code § 719.1(1)(a). "If
[the] person commits interference with official acts, as
defined in this subsection, which results in bodily injury,
the person commits a serious misdemeanor. Id. §
State offered a document reflecting Koppes' criminal
history. Koppes' attorney did not object to consideration
of the history and made reference to Koppes' "two
prior OWI's." In sentencing Koppes, the district
court also referred to Koppes' prior
operating-while-intoxicated offenses but went further. The
[T]his is the third time now that some alcohol- or
drug-related-I don't know what the facts were of the
prior OWI's but it's the third time that there
has been an offense related to substance abuse and,
again, I can't chalk this up to youthful inexperience.
You've had the prior OWIs. You're on probation for
the last OWI.
crime to which Koppes pled guilty contained no
substance-abuse related element. Nor are there facts showing
Koppes committed a substance-abuse related offense or
admitted to such an offense. At most, the record contains
defense counsel's statement that Koppes and the group she
was with "knew that they'd probably be
drinking" and Koppes took an Uber and booked a hotel to
avoid getting "another-any kind of drinking-and-driving
charge." Koppes herself ...