IN THE COURT OF APPEALS OF IOWA
No. 14-0389
Filed October 15, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ORLANDO EUGENE THOMPSON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Orlando Thompson appeals following his guilty plea, claiming the district
court considered unproved conduct when imposing sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, Michael J. Walton, County Attorney, and Amy Devine and
Melisa Zaehringer, Assistant County Attorneys, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.
Orlando Thompson pleaded guilty to possession of marijuana with the
intent to deliver as a habitual offender, in violation of Iowa Code sections
124.401(1)(d), 902.8, and 902.9(3) (2013). He was sentenced to a term of
incarceration not to exceed fifteen years. On appeal, he challenges his
sentence, claiming the district court considered unproved conduct when imposing
sentence.
The district court’s sentence is cloaked with a strong presumption in its
favor, and we will not reverse its sentence absent an abuse of discretion. See
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We afford the strong
presumption of regularity to the sentencing court due to the great confidence we
place in our judges to exercise their discretion appropriately. See State v. Sailer,
587 N.W.2d 756, 764 (Iowa 1998). To establish an abuse of discretion, the
defendant must show the court exercised its discretion “on grounds or for
reasons that were clearly untenable or unreasonable.” Formaro, 638 N.W.2d at
724. Where the defendant alleges the sentencing court took into consideration
an impermissible sentencing factor, such as unproved conduct or unprosecuted
offenses, the presumption of regularity afforded the sentencing court can be
overcome where there is “clear evidence” the sentencing court actually relied on
the impermissible factor in exercising its broad sentencing discretion. See
Formaro, 638 N.W.2d at 724; Sailer, 587 N.W.2d at 764. We will neither assume
nor infer a judge relied on an impermissible factor without clear evidence in the
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record to the contrary. See Formaro, 638 N.W.2d at 724; see also Sailer, 587
N.W.2d at 764.
There is not “clear evidence” the district court relied on an impermissible
sentencing factor. At the time of sentencing, Thompson’s counsel and the district
court both referred to Thompson’s prior federal drug conviction for possession of
crack cocaine. The district court characterized the quantity involved in that case
as “significant” based on the ninety-month sentence imposed. Thompson claims
the district court abused its discretion in characterizing the amount of drugs as
“significant” because the record did not establish the exact quantity of drugs
supporting his federal conviction. While Thompson may disagree with the district
court’s characterization of the quantity involved in the prior matter, the district
court’s statement is not evidence it considered an improper sentencing factor—
Thompson was, in fact, convicted of the offense. Nowhere in the colloquy is
there a reference to “additional, unproven, and unprosecuted charges.” See
Formaro, 638 N.W.2d at 725; see also State v. Black, 324 N.W.2d 313, 315
(Iowa 1982) (stating “[w]e will set aside a sentence and remand a case . . . if the
sentencing court relied upon charges of an unprosecuted offense” (emphasis
added)). Thompson’s challenge to his sentence thus fails.
AFFIRMED.