(dissenting).
The trial court is reversed, not for any error or abuse of discretion, but simply for alluding to the fact that defendant had originally been charged with a greater offense. There were ample grounds to support the sentence. Explaining the basis for the sentence the trial court described defendant’s extensive criminal record as follows:
. . The defendant’s criminal history showed numerous arrests which were alcoholic related. Also on March 28, 1976, there is shown a charge of petty larceny and that the judgment was satisfied by defendant’s serving of a sentence. On May 21, 1977, a second charge of petty larceny was lodged against the defendant; however the records show the case to be still pending. . . . ”
The trial court gave a second reason for denying probation: the defendant had a problem with alcoholism and, the trial court felt, a state institution could accord defendant services needed for his alcoholism.
Certainly there can be no claim that the defendant was in any way misled as to the court’s intentions. Before accepting his plea the trial court explained to the defendant:
“THE COURT: Okay, and that’s one thing I want you to fully understand, that this is a reduced charge, the Court is free to sentence you as the Court sees appropriate. You can make arguments to the Court, you can ask the Court for certain things but it’s the Court’s decision on sentencing completely. Do you understand that?
*373“THE DEFENDANT: Yes, sir.”
It is clear that the trial court was right on the facts. The defendant was originally charged as the trial court indicated. The question is not, as the majority suggests, whether the defendant was shown to have committed the higher crime. The question is whether the sentencing court should be reversed for commenting on the fact that the charge was made.
I. In State v. Delano, 161 N.W.2d 66, 74 (Iowa 1968) we stated our standard for review: “A judgment in a criminal case will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.” See also State v. Moreland, 252 N.W.2d 465 (Iowa 1977); State v. Peckenschneider, 236 N.W.2d 344 (Iowa 1975). This standard was left unchanged in the recent criminal code revision. See § 814.20, The Code, Supp., 1977.
Under rule 22(3)(d), R.Cr.P., a sentencing court is now required, as was done in the present case, to give its reasons for the imposition of sentence. But the requirement was added to aid us in conducting the same review described in Delano. See Note, Judgment and Sentencing Procedures, 60 Iowa L.Rev. 598, 608-609 (February 1975).
II. Defendant contends the trial court abused its discretion and denied him due process under the Fourteenth Amendment of the United States Constitution when it considered the fact he was initially charged with second-degree burglary. The majority seems to agree. But the authorities hold otherwise.
In State v. Kendall, 167 N.W.2d 909, 911 (Iowa 1969) we quoted earlier authorities which described the duty of a trial court in imposing sentences:
“It was the duty of the trial court to ascertain any and all facts that would assist in the proper exercise of its discretion in fixing defendant’s sentence, whether in or out of the record. [Authorities.]
The trial court and we on review should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant’s age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual. [Authority.]”
Where, as here, probation is requested and denied we have said: “ ‘From these pronouncements it is clear that a trial court has a duty to hear an application for parole but has wide discretion in what must be considered in granting or denying the application. [Authority.]’ ” Peckenschneider, supra, 236 N.W.2d at 347. For a discussion of the reasons underlying the broad discretion accorded a trial court in passing sentences, see State v. Cole, 168 N.W.2d 37, 40-41 (Iowa 1969); Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342 (1949).
The federal courts have generally held that a sentencing judge may consider criminal activities for which no charge was filed. See Collins v. Buchkoe, 493 F.2d 343 (6 Cir. 1974); U. S. v. Weston, 448 F.2d 626 (9 Cir. 1971), cert. den. 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972); U. S. v. Onesti, 411 F.2d 783 (7 Cir. 1969); U. S. v. Cifarelli, 401 F.2d 512 (2 Cir. 1968), cert. den. 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1969); Humes v. U. S., 186 F.2d 875 (10 Cir. 1951). State courts have agreed. Anderson v. People, 139 Colo. 46, 337 P.2d 10 (1959); State v. Burton, 52 Ohio St.2d 21, 368 N.E.2d 297 (1977); State v. Blight, 89 Wash.2d 38, 569 P.2d 1129 (1977). Federal cases generally hold that a sentencing court may consider criminal charges which have not been prosecuted to judgment. See Horowitz v. Henderson, 514 F.2d 740 (5 Cir. 1975); Houle v. U. S., 493 F.2d 915 (5 Cir. 1974); U. S. v. Metz, 470 F.2d 1140 (3 Cir. 1972), cert. den. Davenport v. U. S., 411 U.S. 919, 93 S.Ct. 1558, 30 L.Ed.2d 311 (1972); U. S. ex rel. Long v. Pate, 418 F.2d 1028 (7 Cir. 1969), cert. den. 398 U.S. 952, 90 S.Ct. 1877, 26 *374L.Ed.2d 294 (1970); Jones v. U. S., 113 U.S.App.D.C. 233, 307 F.2d 190 (D.C. Cir. 1962), cert. den. 372 U.S. 919, 83 S.Ct. 733, 9 L.Ed.2d 724 (1963). Some authorities have even held that a sentencing court may consider charges for which a defendant has been acquitted. U. S. v. Swieg, 454 F.2d 181 (2 Cir. 1972); State v. Rose, 183 Neb. 809, 164 N.W.2d 646 (1969).
Other courts have held it is permissible for the sentencing court to consider charges which have been reduced in return for a guilty plea or dismissed in exchange for a guilty plea on other charges. 17. S. v. Majors, 490 F.2d 1321, 1324 (10 Cir. 1974); U. S. v. Doyle, 348 F.2d 715 (2 Cir. 1965).
The case of U. S. v. Marines, 535 F.2d 552 (10 Cir. 1976) presented the identical question involved here. A felony charge was dismissed in exchange for a guilty plea on a substituted misdemeanor charge. The sentencing court considered the fact that defendant had been originally charged with a felony and then imposed the maximum sentence for the misdemeanor. This was held to be permissible. In accord see Austin v. U. S., 408 F.2d 808 (9 Cir. 1969); State v. Hanley, 108 Ariz. 144, 493 P.2d 1201 (1972); Micelli v. LeFevre, 444 F.Supp. 1187 (D.C.N.Y.1978).
Consideration of such information does have limitations. In Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), a sentence was overturned because materially untrue information was considered. In U. S. v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), a sentencing procedure was held improper because convictions obtained in violation of the defendant’s constitutional right to counsel were considered. A defendant should have the opportunity to comment on the truth of any such information if explicitly relied on by the trial court. U. S. v. Read, 534 F.2d 858 (9 Cir. 1976); Post v. U. S., 500 F.2d 582 (8 Cir. 1974); U. S. v. Rosner, 485 F.2d 1213 (2 Cir. 1973); U. S. v. Espinoza, 481 F.2d 553 (5 Cir. 1973). Defendant in the present case does not deny the facts surrounding the earlier charge. Neither does he deny the fact that the greater charge was reduced.
The majority embarks, without authority, on a new venture in proscribing certain inappropriate remarks by the sentencing judge. The venture is addressed to nothing but pure form.
I would affirm.
REES, ALLBEE and LARSON, JJ., join in this dissent.