IN THE COURT OF APPEALS OF IOWA
No. 15-0474
Filed November 12, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSEPH HOWARD VAN HECKE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, John D. Telleen,
Judge.
Joseph Van Hecke appeals the sentence imposed following his guilty
plea. AFFIRMED.
Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
DOYLE, Judge.
Joseph Van Hecke appeals the sentence imposed following his guilty plea
to assault causing injury, asserting the court abused its discretion in numerous
respects. We affirm.
I. Background Facts and Proceedings.
At Van Hecke’s sentencing hearing, his attorney stated:
We are here today because of a true family tragedy. What
should have been a day of joyous celebration recognizing the
marriage renewal of wedding vows of Mr. Van Hecke and his wife
ended up with his wife’s brother, his brother-in-law, deceased and
Mr. Van Hecke now before the court after . . . [his brother-in-law’s]
death.
More specifically, in 2013, and as later amended, the State charged Van
Hecke by trial information as a habitual offender with three criminal
counts: (1) involuntary manslaughter, in violation of Iowa Code section
707.5(1)(a) (2013); (2) assault causing serious injury, in violation of section
708.2(4); and disorderly conduct of fighting in a public place, in violation of
section 723.4(1). The minutes of testimony filed therewith alleged witnesses
would testify that on June 13, 2013, Van Hecke punched his brother-in-law in the
face, causing his brother-in-law to fall onto the floor and to strike his head on the
floor. Van Hecke’s brother-in-law died as a result, and the manner of death was
determined to be homicide. Van Hecke subsequently filed notice that he
intended to rely upon the defense of justification in defense of self or another.
A jury trial was held in May 2014. After hearing all of the evidence and
deliberation, the jury informed the court it was unable to reach verdicts on all
3
three counts. The court therefore declared a mistrial, and it ordered the matter
be rescheduled for further proceedings.
Thereafter, Van Hecke pled guilty pursuant to a plea agreement. The
State agreed to dismiss counts 1 and 3 in exchange for Van Hecke’s guilty plea
to the lesser offense of count 2, assault causing injury, in violation of section
708.2(2). The State also agreed to recommend at sentencing that Van Hecke
serve a term of incarceration of 180 days in jail, pay a fine of $315, reimburse the
crime victim fund, and pay restitution to the victim’s family. The plea agreement
signed by Van Hecke agreed that he was “admitting that there is a factual basis
for the charge, and admitting that at the time and place charged in the trial
information I punched [the victim] in the face and that the punch caused bodily
injury to [the victim’s] face.” Van Hecke also filed a written statement advising he
consented to waive his right to an in-court plea colloquy and that his attorney
could appear and enter his guilty plea to the assault charge. The statement
further acknowledged Van Hecke “read the Minutes of Testimony which are
substantively correct as to the fact that [he] punched [the victim], and [he]
admit[ted] that there is a factual basis for the charge against [him].” The court
accepted Van Hecke’s guilty plea and set the matter for sentencing.
At the sentencing hearing, the State recommended Van Hecke be
incarcerated for 180 days, among other things, as it had agreed in the plea
agreement. It explained its reasons for seeking incarceration:
Obviously based on the seriousness of this offense, here we are
dealing—your Honor, was involved in the trial so you certainly know
this case but the actions of this defendant caused the death of
someone and 180 measly days in the Scott County Jail is certainly
4
warranted when we are dealing with the death of someone caused
by the defendant’s actions.
In addition the defendant does have a criminal history, the
trial information was filed with a habitual offender based on prior
criminal convictions and the State certainly feels like a period of
180 days in the Scott County Jail is warranted.
Van Hecke submitted to the court the statement of Van Hecke’s wife and
asked the court to consider that statement “in support or in mitigation of any
sentence that the court [was] contemplating.” Additionally, Van Hecke pointed
out that his prior criminal record—involving non-violent crimes—was dated. One
conviction was over twenty-five years old and the other almost fifteen years old.
He also stated since those convictions, he had
been a productive member of the community. He’s involved in
business, he’s involved in many charitable undertakings . . . . The
people that you see in the courtroom today speak to Mr. Van
Hecke’s community involvement and the positive influence that he’s
had on multiple lives within the community.
....
I submit that the court needs to consider what will be
accomplished with whatever sentencing options the court ultimately
decides to impose . . . . [M]ost people who plead guilty to an
assault with bodily injury charge in this community receive
suspended sentences, that is what Mr. Van Hecke has pled guilty
to, assault resulting in bodily injury. He did not plead guilty to
causing the death of [his brother-in-law. His brother-in-law] died
that night following the assault to which Mr. Van Hecke pled guilty
but I think it’s appropriate for the court to draw a distinction there
between the defendant’s actions and [his brother-in-law’s] death.
....
Mr. Van Hecke has stipulated in connection with the plea
agreement to a restitution amount of $150,000 . . . . His business is
reaching its peak season . . . very shortly and his involvement in his
business . . . can lead to the generation of funds hopefully to fully
satisfy that restitution obligation well before the five years called for
in the plea agreement.
I would submit to the court that the best sentence, one that
offers the best opportunity for rehabilitation, the best opportunity for
the healing of the family is to suspend the sentence of incarceration
called for in the plea agreement, impose the mandatory minimum
fine and allow Mr. Van Hecke to devote his life to the good works
5
that he has devoted his life to over the past [fourteen or fifteen]
years as well as to the restitution obligation which he’s undertaken
in connection with [his brother-in-law’s] death.
Van Hecke personally addressed some members of the victim’s family.
Van Hecke told his wife that he knew her brother loved her “and I took that away
from you and I’ve said it before but I want to say it again, I am sorry. I’m sorry
that you will never get to see him again.” To the victim’s son, Van Hecke stated,
“I took away your best friend and your dad, I’m sorry.” To the victim’s other
children, Van Hecke apologized and stated, “I did not mean to take your dad
away.” Finally, Van Hecke addressed the court, stating: “I didn’t mean for it to
happen, I didn’t mean to hit him, I am sorry. It was just reflexes.”
The court sentenced Van Hecke to 180 days incarceration in jail. The
court explained:
[I]t’s my duty under the law to review what’s available to me in
terms of community resources and determine an appropriate
rehabilitative plan for you but I must consider that the public interest
must be protected and in this case the public interest to be
protected is the deterrence of violent acts and in looking at
sentencing I consider the seriousness of the crime and the effect
that the crime has upon members of the community, your
willingness to accept change and treatment and what’s available to
me in the community to assist me in that process. I look at the
least restrictive alternatives first and then proceed to the more
restrictive alternatives.
In this case, you do have a prior criminal history, however,
as your counsel pointed out most of the history is quite old and I do
not really give it much weight in this case due to the ages of the
convictions and they were not violent matters based on my
understanding of them but they are there but I am not giving them
great weight because they are quite old and it does seem like since
then you have directed your skills to legal businesses and at least
for the past number of years from the information I have in front of
me you’ve been a law abiding citizen recently and a businessman.
But turning to the crime that you have admitted committing,
assault causing bodily injury, that brings us here today for
sentencing, the bottom line is that you admitted that you assaulted
6
[your brother-in-law] without justification. We all know and I, of
course, sat through the trial, the jury was unable to reach a
determination and the State and the defense reached a plea
agreement, a compromise, which I approved.
However, of course, this sentencing isn’t an occasion for
retrying the case, I’m just pointing out that you did in fact plead
guilty to an assault resulting in bodily injury and we know from the
testimony that, in fact, your assault on [the victim] did lead to his
death.
I heard the evidence before the court at an earlier time, I
don’t think it’s necessary for me to rehash any of that but the
bottom line is that you pled guilty to an act, an assault causing
bodily injury, and a man . . . is dead because of your act.
As a judge, one of my roles is to protect society and
deterrence both general and specific is a legitimate worthy goal of
sentencing. I think sentencing you to a term of incarceration
pursuant to the plea agreement serves the goal of deterrence of
both you and for others in the community. Frankly, you’re a middle
age businessman and you apparently were angry and you lashed
out and you struck your brother-in-law and we simply cannot have
in our society people who are old enough to know better, mature
enough to know better punching somebody severely enough that
they lose consciousness and fall back and die. That’s a very
serious matter.
I think incarceration is appropriate due to the nature of the
offense, separation from the community and deterrence and so that
would be the court’s decision. I’m not going to suspend the
sentence.
Van Hecke now appeals, contending the district court abused its discretion
in imposing of a term of incarceration. He asserts the court relied on facts and
charges which were not proven or admitted, and the court failed to give
appropriate consideration to all relevant factors.
II. Discussion.
“The law is clear regarding consideration of impermissible sentencing
factors. We will not vacate a sentence on appeal unless the defendant
demonstrates an abuse of trial court discretion or a defect in the sentencing
procedure such as the trial court’s consideration of impermissible factors.” State
7
v. Lovell, 857 N.W.2d 241, 242-43 (Iowa 2014) (citation and internal quotation
marks omitted). A court abuses its discretion if it “acts on grounds clearly
untenable or to an extent clearly unreasonable.” State v. Hopkins, 860 N.W.2d
550, 553 (Iowa 2015).
A. Reliance upon Unproven or Unadmitted Facts and Charges.
Van Hecke first asserts the court relied upon facts and charges not proven
or admitted. Specifically, he argues the court’s statements that Van Hecke
caused the victim’s death and that he struck the victim out of anger were
unproven facts that could not be considered. He also asserts the court relied on
the fact of the victim’s death as justification for the sentence of incarceration,
effectively considering the dismissed charges in imposing its sentence. We
disagree.
Sentencing courts may not consider an unproven or unprosecuted offense
when sentencing a defendant unless (1) the facts before the court show the
defendant committed the offense or (2) the defendant admits it. See State v.
Jose, 636 N.W.2d 38, 41 (Iowa 2001). In somewhat different phraseology, our
supreme court has stated 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 can consider those facts contained in the
minutes of testimony “that are admitted to or otherwise established as true.”
Lovell, 857 N.W.2d at 243. “[W]hen a challenge is made to a criminal sentence
on the basis that the court improperly considered unproven criminal activity, the
8
issue presented is simply one of the sufficiency of the record to establish the
matters relied on.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). We
will not infer the court considered an improper factor if it is not apparent from the
record. Formaro, 638 N.W.2d at 725. Our goal is not to second guess the
sentencing decision but to determine if the decision rests on an untenable or
improper ground. See Hopkins, 860 N.W.2d at 553-54.
At Van Hecke’s jury trial, Van Hecke asserted the defense of justification
of defense of self or another, thereby admitting he caused the victim’s death.
While the court could not, in its sentencing decision, find that Van Hecke’s
actions were not justified as a reason to support its decision, the fact that Van
Hecke caused the victim’s death is apparent from the facts of the case and the
limited minutes relating to the actual assault. Moreover, even without those
sources of fact, we agree with the State that Van Hecke’s statements to the
family and court at the sentencing hearing support the judge’s finding that Van
Hecke caused the victim’s death. That the court noted Van Hecke caused the
victim’s death does not mean it considered Van Hecke guilty of involuntary
manslaughter in imposing a term of incarceration.
Additionally, the comment by the court that Van Hecke acted out of anger
is also supported by the minutes of testimony. The minutes stated one witness
would testify that Van Hecke “went over [to] the [the victim] and confronted him
about messing with his child. [Van Hecke] then punched [the victim].” The
minutes stated another witness would testify Van Hecke “told [the victim] to ‘back
up, . . . back the fuck up! You hurt my son seriously!’ . . . [Van Hecke] said ‘I’m
going to hit you!’ and hit [the victim] . . .” and the witness “grabbed [Van Hecke]
9
and told him to calm down.” Similarly, the minutes support the court’s statement
that the victim lost consciousness, fell back, and died. Most of the minutes
related to witnesses that observed Van Hecke hitting the victim describe what
happened immediately thereafter—the victim fell back, lost consciousness, and
died. Considering Van Hecke pled guilty to assault causing injury, the injury part
of the minutes is something the court could consider. We do not find these
considerations in its sentencing Van Hecke to a term of incarceration were
improper. Consequently, Van Hecke has failed to show the court abused its
discretion.
B. Consideration of All Relevant Factors.
Finally, Van Hecke contends that though the district court mentioned
mitigating factors in imposing sentence, it did not give them sufficient weight. If it
had, Van Hecke asserts, it would have suspended his sentence. Upon our
review, we disagree.
The Iowa Supreme Court has stated “that the relevant factors when
imposing sentence include the nature of the offense, the attending
circumstances, defendant’s age, character and propensities and chances of [the
defendant’s] reform.” Hopkins, 860 N.W.2d at 554 (citation and internal quotation
marks omitted). Additionally, the legislature has set forth factors including:
a. The age of the defendant.
b. The defendant’s prior record of convictions and prior
record of deferments of judgment if any.
c. The defendant’s employment circumstances.
d. The defendant’s family circumstances.
e. The defendant’s mental health and substance abuse
history and treatment options available in the community and the
correctional system.
f. The nature of the offense committed.
10
g. Such other factors as are appropriate.
Iowa Code § 907.5(1). Furthermore:
When considering whether a court abuses its discretion by
imposing a sentence of incarceration, we recognize the nature of
the offense alone is not determinative. On the other hand, the
seriousness and gravity of the offense is an important factor. In the
end, a court makes each sentencing decision on an individual basis
and seeks to fit the particular person affected.
Hopkins, 860 N.W.2d at 555 (internal citations omitted).
Overall, we cannot conclude the district court abused its discretion at
sentencing. The court’s colloquy establishes it considered the relevant factors in
its sentencing decision. The reasons stated by the court for imposing a term of
incarceration were within the statutory limits, and the court set forth its reasons
for imposing the term of incarceration. Perhaps another court would have
imposed a different sentence, but this does not make the court’s sentence
unreasonable or untenable. We therefore conclude Van Hecke failed to establish
the court did not consider all of the relevant factors in deciding to impose a term
of incarceration.
III. Conclusion.
For the foregoing reasons, we affirm the district court’s sentence imposing
a term of incarceration following Van Hecke’s guilty plea.
AFFIRMED.