IN THE COURT OF APPEALS OF IOWA
No. 14-2154
Filed September 10, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
VAUGHN DION WHITE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
A defendant appeals his sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, Matthew Wilbur, County Attorney, and Jon Jacobmeier,
Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
2
VAITHESWARAN, P.J.
Vaughn Dion White pled guilty to escape from custody, in violation of Iowa
Code section 719.4(1) (2013). At the sentencing hearing, White’s attorney
requested probation. The officer who prepared White’s presentence
investigation report recommended “appropriate prison time.” The district court
adopted the PSI recommendation and sentenced White to a prison term not
exceeding five years.
On appeal, White contends the district court (1) considered impermissible
factors in sentencing him and (2) abused its discretion in failing to consider
mitigating circumstances.
(1) “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.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).
The sentencing court began its discussion of the sentence with the cited
admonition, stating “it’s not appropriate that I consider uncharged or unconvicted
matters.” The court next made reference to the presentence investigation report.
The court summarized the contents of the report as follows:
I see a rather checkered past for a young person like you. You’re
21, 22 years old and there are a number of entries on here
including robbery, assault and battery, several are of destruction of
property kinds of charges. The PSI also recommends a prison
sentence and I’m going to accept that recommendation based
primarily on your prior criminal history. . . . I believe I’ve explained
the reason for my sentence, but primarily, your prior history and
your just recent release on parole, in fact.
3
White points out “[t]he history that the court recited included a robbery charge,
which [he] was not convicted of” and a reference to “‘several’ destruction of
property crimes,” when the PSI showed “only one such conviction.”
We are convinced the court simply misspoke. The electronically-filed PSI
report, typed in small font, stated White was arrested for robbery, “which was
amended to Attempt of a Class 2 Felony and found guilty.” The court’s omission
of the word “attempt” can only be construed as inadvertent.
As for the court’s reference to “several” entries for “destruction of property
kind of charges,” the PSI report showed convictions for trespass and criminal
mischief in addition to the conviction for destruction of property. The court was
clearly referring to similar types of convictions rather than the single destruction-
of-property conviction.
We conclude the sentencing court did not consider impermissible factors
in imposing sentence. See Formaro, 638 N.W.2d at 725-26 (refusing to “draw an
inference of improper sentencing considerations which are not apparent from the
record”); State v. Jose, 636 N.W.2d 38, 41-42 (Iowa 2001) (“When we consider
the court’s statement in context, we think the court considered Jose’s prior
convictions rather than unproven charges in sentencing him to imprisonment.”).
(2) Iowa courts have “a duty to consider all the circumstances of a
particular case.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). White
contends “[t]he court did not consider mitigating factors, or the chances of
rehabilitation.” We disagree. The court referred to the presentence investigation
report, which described White’s limited education, learning disabilities, and
association with people who lived “a criminal lifestyle.” While the court did not
4
cite these factors, courts have no obligation to “specifically acknowledge each
claim of mitigation urged by a defendant.” Id.
We conclude the sentencing court considered pertinent factors in
sentencing White. We discern no abuse of discretion in the sentencing decision.
AFFIRMED.
Potterfield, J., concurs; McDonald, J., dissents.
5
MCDONALD, J. (dissenting)
I respectfully dissent. The district court explicitly stated it based its
sentencing decision in part on a robbery conviction when the defendant has not
been convicted of robbery. That is an impermissible sentencing consideration
requiring the defendant’s sentence be vacated and the matter remanded for
resentencing.
In support of its conclusion the district court did not consider an improper
factor in sentencing the defendant, the majority notes the district court stated “it’s
not appropriate that I consider uncharged or unconvicted matters.” This
statement is out of context. In context, the district court’s statement was not so
broad. The prosecutor attempted to interject error into this sentencing
proceeding by explicitly relying on an unproved and unprosecuted attempted
murder charge in support of the State’s recommendation for prison:
He . . . recently got out on parole . . . and then turned around and
was arrested for shooting into a car numerous times, which was—
unfortunately, had to be dismissed because of a lack of . . . witness
cooperation. We’re asking for prison, Your Honor.
In response to this specific statement, the district court stated, “[I]t’s not
appropriate that I consider uncharged or unconvicted matters and so I’m not
going to consider the statement by the prosecutor that there was some other
charge out there that didn’t happen because witnesses didn’t cooperate.”
(Emphasis added.) Immediately after making that limited statement of non-
reliance, the district court recited the defendant’s criminal history as “including
robbery, assault and battery, several are of destruction of property kind of
charges.” The district court then stated it was going to accept the
6
recommendation of incarceration “based primarily on your prior criminal history.”
It is not disputed the defendant has never been convicted of robbery.
The majority concludes the defendant’s sentence nonetheless should be
affirmed because the district court merely misspoke. The majority finds the
district court intended to say “Attempt of a Class 2 Felony,” the offense for which
the defendant was convicted, when it said “robbery.” That seems a stretch. The
majority supports this finding with an additional finding that the PSI font is small.
How the majority makes this finding without knowing whether the district court
looked at a hard copy of the PSI or a soft copy of the PSI or whether the district
court magnified or “zoomed in” the soft copy of the PSI is an interesting, but
ultimately immaterial, question—all of this is pure speculation. It is equally likely
the district court simply misread the PSI and thought the defendant had been
convicted of robbery.
I recognize “the sentencing process can be especially demanding and
requires trial judges to detail, usually extemporaneously, the specific reasons for
imposing the sentence.” State v. Thomas, 520 N.W.2d 311, 313–14 (Iowa Ct.
App. 1994). The performance of this judicial duty can produce unfortunate
phraseology, unintended remarks, misconstrued remarks, and just plain
misstatements. See id. Thus, the sentencing decision enjoys a strong
presumption in its favor. See State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).
The presumption is limited; it means only that we will not draw an inference of
improper sentencing considerations not apparent in the record. See State v.
Formaro, 638 N.W.2d 720, 725 (Iowa 2002). The presumption does not go so far
as to negate an instance when the sentencing court explicitly states it is relying
7
on an impermissible sentencing consideration. The district court may have made
a misstatement or may have misread the PSI, but neither can be determined
from this record. The only thing that can be determined from this record, without
resort to utter speculation, is the district court explicitly stated it based its
sentencing decision on a prior robbery conviction when the defendant has not
been convicted of robbery. This requires the sentence be vacated and this
matter remanded for sentencing. See State v. Gonzalez, 582 N.W.2d 515, 516
(Iowa 1998) (noting the general rule a court “may not consider an unproven or
unprosecuted offense when sentencing a defendant”); State v. Cary, No. 13-
0039, 2014 WL 465769, at * 4 (Iowa Ct. App. Feb. 5, 2014) (McDonald, J.,
dissenting).