IN THE COURT OF APPEALS OF IOWA
No. 22-0302
Filed January 11, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SPENCER JERRICK CARTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi
Ackley, Judge.
Spencer Jerrick Carter appeals the sentences imposed following his guilty
plea to assault on persons engaged in certain occupations and interference with
official acts causing injury. AFFIRMED.
Chris Raker, East Dubuque, Illinois, for appellant.
Brenna Bird, Attorney General, and Olivia D. Brooks, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Greer and Badding, JJ.
2
BOWER, Chief Judge.
Spencer Jerrick Carter pleaded guilty to three counts of assault on persons
engaged in certain occupations (FECR143874) and interference with official acts
causing injury (SRCR144570).1 He appeals the sentences imposed in these two
cases, asserting the district court considered improper factors when the prosecutor
relayed information to the court, which Carter characterizes as improper victim
statements.
“Our review of a sentence imposed in a criminal case is for correction of
errors at law.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
Carter entered a global written guilty plea, which states in part:
7. I admit that on or about the date(s) alleged, I did the
following things that constitute the crime . . . . The court may rely on
the record, including the minutes of testimony to find a factual
basis. . . .
....
FECR143874 (Count IV) That on or about October 14, 2021,
in Dubuque County, Iowa, the Defendant did harass Thomas Warner
and threaten to commit a forcible felony.
FECR143874 (Count V): That on or about October 14, 2021,
in Dubuque County, Iowa, the Defendant did commit an assault
against Matthew Levin, a uniformed peace officer.
FECR143874 (Count VI): That on or about October 14, 2021,
in Dubuque County, Iowa, the Defendant did commit an assault
against Todd Sieverding, a firefighter.
FECR143874 (Count [VII2]): That on or about October 14,
2021, in Dubuque County, Iowa, the Defendant did commit an
assault against Steve Haupert, a firefighter.
1 Carter appeared for a global sentencing hearing related to four separate criminal
cases: SRCR143192, FECR143874, SMCR143875, and SRCR144570. We have
already addressed his appeal from the sentence imposed in SRCR143192. See
State v. Carter, No. 22-0336, 2022 WL 10828383 (Iowa Ct. App. Oct. 19, 2022)
(affirming sentence imposed following his conviction for domestic-abuse assault,
second offense).
2 Paragraph 7 of the written plea has an obvious typographical error. Paragraph 5
on the prior page of the written plea properly indicates Count VII concerns
Firefighter Haupert, not Count IV.
3
....
SRCR144570: That on or about December 7, 2021, in
Dubuque County, Iowa, the Defendant did knowingly resist or
obstruct Deputy Shane Freiburger, a uniformed peace officer, in the
performance of his lawful duty and which resulted in bodily injury.
(Emphasis added.)
All the FECR143874 guilty pleas relate to events on October 14, 2021,
when officers responded to a domestic abuse disturbance. The minutes of
testimony state, in part:
Officers from the Dubuque Police Department responded quickly,
including Matthew Levin [and] Thomas Warner . . . . Officers
located the defendant and attempted to speak with him in the living
room of the residence. They observed the defendant to have red
watery bloodshot eyes, slurred speech, and a strong odor of
alcoholic beverage emanating from him. Officers located the no-
contact order protecting [N.O.] from the defendant, and as the
officers confirmed its validity with dispatch the defendant became
uncooperative and attempted to rush into the separate room where
other officers were talking with [N.O.]
Officers restrained the defendant, including by using personal
defense spray, and the defendant continued to refuse to cooperate
with police attempts to move him. Officers requested assistance
from the Dubuque Fire Department, and as the defendant was
strapped to a cot and prepared to move he told Officer Warner, “I will
kill you and your family.” The defendant proceeded to spit on two
different firefighters as he was being carried away, Firefighters Todd
Sieverding and Steve Haupert.
The charge of interference with official acts causing injury arose from a fight
between Carter and another jail inmate on December 7. The minutes of testimony
state:
State of Iowa expects to prove by the testimony of Shane
Freiburger, Mike Brehm and Andrew Harwardt that they are
deputies with the Dubuque County Sheriff’s Office, all currently
assigned duty at the Dubuque County Jail. They will testify
concerning their training and experience, and they will testify
concerning their knowledge of inmates Spencer Jerrick Carter, and
[B. another inmate].
4
On December 7, 2021, [B.] and Carter were playing a card
game together with two other inmates when a verbal altercation
began between them. [B.] initiated physical contact by throwing a
tablet at Carter; Carter attempted to strike [B.] back with the tablet,
then both began punching one another. Deputy Freiburger
separated the two, but as he restrained Carter, [B.] continued to
attempt to attack Carter over Freiburger’s back. Freiburger was
ordering both to stop fighting, but both Carter and [B.] continued to
strike at each other. Before other staff could get there, one of [B.]’s
punches struck Freiburger in the back of the head.
Eventually other staff arrived and Deputy Harwardt used his
taser to stun [B.] into submission. Both [B.] and Carter were
handcuffed and removed from the unit. Freiburger had pain and
difficulty lifting his right arm after the incident continuing for several
weeks.
The court accepted the guilty pleas and set a time for a combined
sentencing hearing.
The presentence investigation (PSI) report recommended jail terms and
prison sentences rather than probation.
At sentencing, the prosecutor noted these counts concerned persons
responding to the domestic assault call and later in the county jail:
It’s a—a strong pattern of just being unable to contain his impulses
or emotions when he is with not only law enforcement but also just
paramedics who were there to help him out. . . . [W]e reached out to
firefighters and police officers to see if any of them would like to give
a victim impact statement. None of them did exactly, but Firefighter
Todd Sieverding did say that he wanted to relay that placing a spit
hood on a subject is sort of the last resort for what they do. It’s
demeaning, not only for the subject, but for the firefighters to do that,
and if they can avoid using a spit hood, in any, in any sort of way,
they would avoid doing so, but they weren’t able to do that here
because the Defendant continued to resist, even as they were trying
to help him. Their hands were tied up holding the cot and the patient,
but in order to make sure he caused no harm to himself or to us, we
used the spit hood. So that’s from Lieutenant Sieverding. Jaylen
Freiburger submitted that he did not want to give a victim impact
statement but he wants to relay that he’s still on light duty due to the
shoulder not healing, and that’s from a couple weeks ago, so that
may have changed by now. He understood that the other subject in
the fight between the Defendant here and [B.], [who] was sort of the
5
more culpable of the two in the jail fight, so that Jaylen Freiburger
was willing to grant more mercy to Carter. I don’t necessarily share
those feelings. It takes two to tango in that sort of situation, and
Carter is just as culpable as [B.] for the injuries sustained by Deputy
Freiburger.
The defense made no objection to the prosecutor’s statements.
The prosecutor recommended the court impose prison terms and jail
sentences. The defense argued for the suspension of sentences and probation
with substance-abuse treatment.
Carter made a statement to the court and then responded to the court’s
question of what caused him to get into an altercation with the firemen:
THE DEFENDANT: Your Honor, I have—I had been severely
maced in the presence at the home. They caught me off-guard and
my mouth was open, so I was just trying to clear my throat, because
of all of the mace and stuff like that, and I was spitting, not on like the
firefighters, but just trying to spit off, on the ground, to try to get the
mace off, Your Honor.
The court ruled:
These are a lot of offenses to consider, and the thing that is
most problematic to me is the fact that there is a problem with alcohol
but when some of these things have been occurring, alcohol was not
the issue. So you’ve got a temper . . . . Then I have to break it down
with regard to each of the offenses, what prompted everything, how
it came about, and what it would do to whom. Incidences with
officers is always a problem for the court. They’re doing a job.
They’re trying to protect you as well as the community and those
around you, and disrespect to officers is not tolerated. I wouldn’t
have safety in this courtroom without these officers here. I wouldn’t
feel safe leaving this building to go to my car on a number of
occasions without these officers here. I appreciate everything that
they do as well as over at the jail. I appreciate the fact that they keep
the peace in the community where I want to be a part of. And when
I see that people don’t give them the due respect and recognize that
people’s lives are on the line on a regular basis, even when you’re at
the jail, that’s a problem. And at your age, making the choice to stay
in a relationship with a woman that you obviously don’t have any
respect for or you wouldn’t have done what you did to her, that’s also
a problem. So, I can tell you I do appreciate the fact that you may
6
have been responsible for your children, but the other choices you
have made at your age are not responsible, and I can’t give you a
suspended sentence on them. I will, however, take the
recommendation of the PSI as opposed to what the State is
recommending, so it will give you some relief, and I hope that once
you get into the system, things go much more quickly for you, and
that while you’re there, you continue to maintain sobriety and seek
that counseling that is necessary for you to recognize what your
triggers are and how to stop you from going back into that same
state.
So with regard to FECR143874, as I indicated, it will be a two-
year term for Count III, two-year term for Count IV, 120 days on each
Count V and VI. With regard to Count VII, another 120 days. Those
will run consecutive to one another as recommended. . . . And it is
not to lessen the impact of what you did with the officers, it is just a
means for you to get situated for sentencing purposes, and I want
you to recognize that I find those to be troublesome.
On appeal, Carter contends the prosecutor’s relaying of information from
the officers constituted improper victim statements and he is entitled to
resentencing.
“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
v. Lovell, 857 N.W.2d 241, 242–43 (Iowa 2014) (citation omitted). “If a court in
determining a sentence uses any improper consideration, resentencing of the
defendant is required,” even if it was “merely a ‘secondary consideration.’” State
v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
We see two problems with Carter’s claim on appeal. First, there was no
objection made about “victim statements.” See Lamasters v. State, 821 N.W.2d
856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that issues
must ordinarily be both raised and decided by the district court before we will
decide them on appeal.” (citation omitted)).
7
Second, there is nothing in the court’s reasons to indicate it considered
improper factors. The court does not mention the relayed statements at all.
Rather, the court addresses the very nature of the charges to which Carter pleaded
guilty—harassment of and assaults upon police officers, firefighters, and jail
personnel. The minutes of testimony—which Carter agreed could be
considered3—outline Carter’s interactions with the named victims, including
threats to kill one officer, physical assaults on others, spitting at firefighters, and
being involved in the jail fight during which jail personnel were injured. The court
noted, “Incidences with officers is always a problem for the court. They’re doing a
job. They’re trying to protect you as well as the community and those around you,
and disrespect to officers is not tolerated.” We find no legal error and, thus, we
affirm.
AFFIRMED.
3 “The sentencing court should only 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 (alteration in original) (citation omitted).