IN THE COURT OF APPEALS OF IOWA
No. 14-1073
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GAYLE LYNN HOWARD,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
A defendant appeals her sentence following guilty pleas to possession of
marijuana with intent to deliver and a drug tax stamp violation. AFFIRMED.
Julie A. Ofenbakh of Ofenbakh Law Firm, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Linda Fangman, County Attorney, and Brad P. Walz, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Tabor, J., and Goodhue, S.J.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.
Gayle Lynn Howard entered pleas of guilty to possession of marijuana
with intent to deliver and a drug tax stamp violation. She was sentenced to terms
of incarceration not to exceed five years on each charge, with the sentences to
run concurrently; probation was denied. She was sentenced to pay a fine with
the surcharge suspended, a law enforcement initiative fee, and a DARE fee as to
both charges. In addition her driver license was suspended. Howard has
appealed the sentences.
I. Background Facts
In imposing the sentence, the district court stated: “[T]his is your third
felony for involvement with drugs.” Both the prosecutor and defense counsel
informed the court that Howard had only one prior conviction involving drugs and
attempted to correct the court accordingly. Defense counsel asserted, “It was
just one offense date and one conviction for numerous charges.” The court
responded, “I think we’re saying the same thing, just in different terminology.”
The court then proceeded to refer to the presentence investigation (PSI) and
stated as follows:
You’ve got Ms. Howard that 1999 conviction here in Black Hawk
County for conspiracy to manufacture methamphetamine ten years
in prison. You’ve got possession of methamphetamine in May of
2000, 180 days in jail. Possession of marijuana, May 4, 2000, one
year in jail. Possession of precursor May 4, 2000, ten years in
prison, and that’s apparently the same as that conspiracy to
manufacture. Possession of amphetamine, five years in prison.
What am I missing there? Is that not a felony?
Regardless of the defense counsel’s and the prosecutor’s insistence that there
was only one prior drug felony, the court did not change the sentence it had
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imposed. In fact, the PSI stated that on May 5, 2000, Howard was convicted and
sentenced for conspiracy to manufacture methamphetamine, possession of a
precursor, and possession of ephedrine—all three felonies—and various other
nonfelonious drug charges. The convictions and sentences all took place on the
same date, but there were three separate felonies. Howard has not challenged
the accuracy of the PSI.
II. Error Preservation
The concept of error preservation is not usually applicable to illegal or
procedurally defective sentences. State v. Woody, 613 N.W.2d 215, 217 (Iowa
2000).
III. Standard of Review
Sentences are reviewed for errors of law. State v. Formaro, 638 N.W.2d
720, 724 (Iowa 2002). If within the statutory framework, a sentence is cloaked
with a strong presumption in its favor. Id. A district court’s sentencing will be
overturned for an abuse of discretion that will only be found when the discretion
exercised is clearly untenable or unreasonable. Id.
IV. Discussion
Howard’s primary contention is that the district court relied on improper
sentencing factors. The court cannot rely on unproven charges unless they are
admitted. Id. at 725. The fact the convictions and sentences were all in one
proceeding does not diminish or effect the fact that there had been three prior
convictions. In order to be used to increase punishment, a conviction must
include an adjudication of guilt and a sentence. State v. Deng Kon Tong, 805
N.W.2d 599, 601-02 (Iowa 2011). There were three adjudications and three
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sentences. The fact that sentencing for all three offenses took place on the
same date does not mean that there was only one conviction.
The complaining party has a heavy burden of affirmatively showing abuse
or prejudice in a trial court sentencing. State v. Pappas, 337 N.W.2d 490, 494
(Iowa 1983). Howard has failed to meet that burden. Howard has built her case
on a factual assertion that is demonstratively inaccurate and without merit.
AFFIRMED.