IN THE COURT OF APPEALS OF IOWA
No. 18-0230
Filed December 19, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHRISTOPHER DAVID VOGEL,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Carol S. Egly, District
Associate Judge.
Christopher Vogel appeals his sentence following his guilty plea to animal
abuse. SENTENCE VACATED IN PART AND REMANDED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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DANILSON, Chief Judge.
Christopher Vogel appeals from his sentence following his guilty plea to
animal abuse, in violation of Iowa Code section 717B.2 (2017), an aggravated
misdemeanor. Vogel contends the sentencing court abused its discretion by
considering improper factors in imposing his sentence and entered an illegal
sentence when it ordered him to pay court costs associated with dismissed
charges. Because Vogel has not affirmatively shown the court considered
improper factors, we find no abuse of discretion. However, we vacate the portion
of the sentencing order imposing an obligation to pay the costs of dismissed
charges and remand for entry of a corrected sentencing order.
I. Background Facts and Proceedings.
On September 27, 2017, Vogel was charged with animal abuse and criminal
mischief in the fourth degree in case number AGCR307687—both counts
stemming from the same incident. On November 30, Vogel reached a plea
agreement with the State, which provided: (1) Vogel would plead guilty to animal
abuse; (2) a pre-sentence investigation (PSI) would be completed; (3) the parties
were free to argue for any allowable sentence; (4) Vogel would pay “[a]ll applicable
surcharges and costs, including any court-appointed attorney fees”; (5) “[t]he State
will dismiss count II [criminal mischief] of AGCR307687 and SMAC369966 upon
sentencing”; (6) restitution; and (7) any other conditions the court may impose.
The court accepted Vogel’s written guilty plea and ordered a PSI.
On February 1, 2018, the court sentenced Vogel to prison for two years,
with credit for time served in jail awaiting trial, and suspended a $625 fine plus
surcharge. Of the sentencing considerations set out in Iowa Code section 907.5,
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the court found the following factors to be the most significant in determining
Vogel’s sentence: (1) the nature and circumstances of the crime; (2) the
defendant’s criminal history, and; (3) the defendant’s propensity for further criminal
acts. The court also found “[i]ncapacitation [sic] is warranted based on
Defendant’s history and stated desire not to be on probation as well as the nature
of this crime.” The court ordered restitution to be determined at a later date,
entered a no-contact order, and ordered DNA profiling.
The court also ordered:
Pursuant to the plea agreement and upon the
recommendation of the State, the following counts/cases are
dismissed: COUNT II: CRIMINAL MISCHIEF IN THE FOURTH
DEGREE; NTA0794542; SMAC369966. Pursuant to the plea
agreement Defendant is ordered to pay court costs on these
counts/cases and if restitution is due on any of these counts/cases,
Defendant is ordered to pay such restitution.
Vogel appeals.
II. Scope and Standard of Review.
Our review of sentencing decisions is for the correction of errors at law.
State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). Because the challenged
sentence does not fall outside statutory limits, we review the court’s decision for
abuse of discretion. Id. Reversal for an abuse of discretion is warranted only if
the court’s discretion has been exercised “on grounds or for reasons clearly
untenable or to an extent clearly unreasonable.” Id.
III. Discussion.
Vogel contends the sentencing court abused its discretion because it
improperly considered portions of his criminal history that did not result in a
conviction or juvenile disposition.
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“A district court 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.” State v. Jose,
636 N.W.2d 38, 41 (Iowa 2001). “On our review, a district court’s sentencing
decision enjoys a strong presumption in its favor.” Id. “To overcome the
presumption, a defendant must affirmatively show that the district court relied on
improper evidence such as unproven offenses.” Id.
Here, Vogel merely speculates the district court relied on unproven
offenses. Vogel has not affirmatively shown the district court relied on improper
evidence. The court did not abuse its discretion in sentencing Vogel.
Vogel also contends his sentence is illegal because the sentence requires
him to pay court costs on the dismissed counts. The inclusion of court costs for
dismissed charges does not automatically render a sentence illegal. However,
where the plea agreement is silent regarding the payment of fees and costs, only
those fees and costs attributable to the charge on which a defendant is convicted
are recoverable under a restitution plan. State v. Brown, 905 N.W.2d 846, 857
(2018) (citing State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991)).
Vogel contends the written guilty plea “contains no mention regarding
assessment of court costs on the dismissed charges.” We agree. We
acknowledge the written plea states the plea agreement includes “[a]ll applicable
surcharges and costs, including any court-appointed attorney fees.” However
when the plea bargain is silent as to costs, and a statute does not authorize the
assessment of costs to the defendant for a dismissed charge, it is error for the
district court to order the defendant to pay such costs. Petrie, 478 N.W.2d at 622.
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Here, there is no statute that authorizes payment, and we do not interpret the
language in the written plea as requiring payment to include the dismissed
charges. We reach this conclusion because there would be no surcharges on the
dismissed charges, and there is no clear reference to the dismissed charges. We
also note the plea agreement, at least pursuant to the written plea, did not
encompass the simple misdemeanor offense. Consequently, the district court
imposed an illegal sentence, and we sever the portion of the sentence imposing
the costs for the dismissed charges, including count II. See Bonilla v. State, 791
N.W.2d 697,702 (Iowa 2010) (permitting an invalid part of a sentence to be
severed and leave the valid portions intact).
We remand to the district court for entry of a corrected sentencing order
consistent with this opinion.
SENTENCE VACATED IN PART AND REMANDED.