IN THE COURT OF APPEALS OF IOWA
No. 14-0654
Filed December 10, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSEPH ALLEN ERLINGER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Patrick R. Grady
(guilty plea) and Mitchell E. Turner (sentencing), Judges.
A defendant appeals his prison sentence, alleging the sentencing court
relied on unproven offenses. JUDGMENT AFFIRMED, SENTENCE VACATED,
AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Jerry Vander Sanden, County Attorney, and Nicholas L. Scott, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Doyle and Tabor, JJ.
2
TABOR, J.
At his sentencing hearing, Joseph Erlinger admitted he had a “bad night”
on November 2, 2013. That night, he and his wife drove from their home in
Illinois to a concert in Iowa. He drank heavily and then strangled his wife until
she lost consciousness at a Cedar Rapids tavern. When a police officer arrived
at the tavern to investigate the domestic violence, Erlinger assaulted and
threatened to kill the officer. At his plea hearing, Erlinger said he did not
remember much from that night due to his intoxication, but had no reason to
question the minutes of evidence.
His conduct that night prompted the State to file a five-count trial
information, alleging: (1) domestic abuse assault causing bodily injury
(strangulation), a class “D” felony, in violation of Iowa Code section 708.2A(5)
(2013); (2) first-degree harassment, an aggravated misdemeanor, in violation of
sections 708.7(1) and 708.7(2); (3) assault on a peace officer, a serious
misdemeanor, in violation of sections 708.1 and 708.3A(4); (4) interference with
official acts, in violation of section 719.1(1); and (5) public intoxication, in violation
of section 123.46. He entered a plea of guilty to the first three counts and the
State dismissed the fourth and fifth count.
At the sentencing hearing on March 28, 2014, Erlinger requested a
suspended sentence, while the State advocated for concurrent prison terms.
The district court sentenced him to concurrent prison sentences, not to exceed
five years. Erlinger now appeals, alleging the sentencing court considered
unproven and unprosecuted offenses.
3
We review the sentencing proceeding for correction of errors at law. State
v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). We will not upset a sentence
on appellate review unless the defendant demonstrates an abuse of trial court
discretion or a defect in the procedure, such as the district court’s consideration
of impermissible factors. Id. We do not assume a judge relied on an
impermissible factor without clear evidence in the record to the contrary. See
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
In giving its otherwise well thought-out and thorough reasoning for the
sentence imposed, the district court told Erlinger: “I don’t doubt your earnestness
when you tell me that you’re trying to better yourself, but I’ve read through the
Presentence Investigation. . . . You have a history of domestic battery charges.
That suggests you haven’t gotten it to this point.” Later in the sentencing
proceedings, the district court said “the reasons for my sentence are the facts
and circumstances as set out in the Presentence Investigation.”
Erlinger seizes on the district court’s reference to his “history of domestic
battery charges.” The presentence investigation (PSI) report showed Erlinger
had one previous domestic battery conviction in Illinois, as well as two other
charges of domestic battery in Illinois that had been dismissed. Erlinger
contends the court improperly considered his unproven offenses along with his
prior conviction. The State argues the district court’s plural reference “may well
have been to the previous domestic battery conviction from Illinois and the
current conviction.”
4
“It is a well-established rule that a sentencing court may not rely upon
additional, unproven, and unprosecuted charges unless the defendant admits to
the charges or there are facts presented to show the defendant committed the
offenses.” Id. at 725 (citing State v. Black, 324 N.W.2d 313, 315-16 (Iowa
1982)). If the court considers an unproven charge, a remand is necessary for
resentencing. Id.
We agree with Erlinger that the court’s reference to “domestic battery
charges” is problematic and strongly suggests the court considered not just his
prior conviction, but the instances where he was charged but not convicted. See
State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct. App. 1991) (“The court may not
consider those crimes for which the defendant has been charged but was not
convicted.”). The court’s supposition from those charges that the defendant had
not “gotten it to this point” tends to rule out the State’s interpretation that the court
was lumping the prior Illinois conviction together with current Iowa offense.
The court’s consideration of the unproven offenses tainted the sentencing
proceedings. State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999) (noting
appellant courts may not speculate about the weight a sentencing court assigned
to an improper consideration”). Accordingly, we must vacate the sentence and
remand for resentencing.
Erlinger raises an additional concern about court costs, alleging he was
assessed court costs associated with all five counts in the trial information, rather
than the three counts for which he was convicted. The State agrees Erlinger
cannot be assessed court costs on the charges dismissed as part of the plea
5
agreement. See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (“[O]nly such
fees and costs attributable to the charge on which a criminal defendant is
convicted should be recoverable under a restitution plan.”); see also Iowa Code
§§ 815.13, 910.2. In the order following resentencing, the court should make
clear Erlinger is only responsible for court costs associated with the charges for
which he was convicted.
JUDGMENT AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.