IN THE COURT OF APPEALS OF IOWA
No. 16-1127
Filed March 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK PAUL COLBERG,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
Mark Colberg challenges the sentence imposed following his guilty plea to
first-degree harassment. AFFIRMED.
Jeffrey L. Powell of the Law Office of Jeffrey L. Powell, P.L.C.,
Washington, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
DANILSON, Chief Judge.
Mark Colberg pled guilty to first-degree harassment, in violation of Iowa
Code section 708.7(2)(a) and (b) (2015), after he threatened to “blow his
[neighbor’s] head off” and then pointed a long gun at the neighbor. As part of the
plea agreement, Colberg agreed to have no contact with the victim or the victim’s
wife and child. Pursuant to the plea agreement, the State dropped charges of
going armed with intent, assault, and child endangerment. On appeal, Colberg
challenges the sentence imposed, contending the court considered unproven
charges. The record contradicts his contention, and we therefore affirm.
We review a district court’s sentencing decision for an abuse of discretion.
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “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. A
sentence that is within the statutory limits “is cloaked with a strong presumption
in its favor.” State v. Washington, 832 N.W.2d 650, 660 (Iowa 2013) (citation
omitted).
Colberg argues the victim’s statement that Colberg “stared down the
barrel of a rifle he pointed at me and my little girl” improperly referred to unproven
allegations involving the victim’s daughter. But to overcome the presumption in
favor of a sentence, “a defendant must affirmatively show that the district court
relied on improper evidence such as unproven offenses.” State v. Jose, 636
N.W.2d 38, 41 (Iowa 2001). Colberg has failed to do so here.
3
In sentencing Colberg to 180 days in jail—not the two-year term the State
requested nor the deferred judgment Colberg requested—the court explained:
Well, there’s a number of factors that the Court balances in
determining what sentence is appropriate, one of which is the
offense itself for which a person has pled guilty to, in this case
Harassment in the First Degree; the manner in which it was
committed. There was a threat of violence and a possession of a
pellet gun, which indicated a very strong possibility of carrying out
that threat of violence. It’s an extremely traumatic offense.
On the other hand, the defendant has minimal to no criminal
history. He does, however, have one prior conviction for
harassment, while a similar offense, to a lesser degree.
....
I understand [defense counsel] Mr. Ostergren clarifying the
record that it was a pellet gun and not a rifle or something else, but
nonetheless when you make a threat to harm someone or threaten
to kill them and you point something, that—even a pellet gun, it’s an
extremely serious offense. So even given your lack of criminal
history, the Court finds that a lengthy jail sentence is appropriate
under the facts and circumstances of this case. And that’s the
reason for the sentence imposed.
....
The Court also did not take into account any of the other
counts, since you did not plead guilty to them. But based upon
your quite frankly relative good standing other than this event within
the community, your relative lack of criminal history other than the
one harassment offense, as well as due to your acts in this case
which the Court takes extremely serious, those are the reasons for
the sentence imposed, and the fact that you did possess a pellet
gun when this offense and when these threats were imposed.
The district court did not make any reference to any alleged offense
committed against the victim’s daughter and, thus, did not consider improper
factors nor abuse its broad discretion here. We affirm.
AFFIRMED.