IN THE SUPREME COURT OF IOWA
No. 19–1561
Submitted March 23, 2021—Filed May 7, 2021
STATE OF IOWA,
Appellee,
vs.
WILLIAM FRANK FETNER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Cerro Gordo County, Karen
Kaufman Salic, District Associate Judge.
Defendant alleging the district court relied on improper sentencing
factors seeks further review of court of appeals decision affirming his
sentence. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING.
Christensen, C.J., delivered the opinion of the court, in which Appel,
McDonald, Oxley, and McDermott, JJ., joined. Mansfield, J., filed a
dissenting opinion in which Waterman, J., joined.
Richard Hollis, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas E. Bakke, Assistant
Attorney General, and Carlyle D. Dalen, County Attorney, for appellee.
2
CHRISTENSEN, Chief Justice.
During sentencing, the defendant’s counsel informed the district
court that defendant was “not very consistent with taking his medications
so the marijuana [the defendant] was using seems like basically a way to
self-medicate for the anxiety that [the defendant] feels.” In arguing for a
suspended sentence, the defendant’s counsel also told the district court
that the defendant and his significant other were “running a day care
center” where the defendant “helps where he can there in an effort to keep
the expenses down for their home but also to provide for the family.” The
district court subsequently sentenced the defendant to consecutive prison
terms, explaining, in part, it was “terrified [the defendant was] helping in
a day care” and “[i]t’s not safe for you to be caring for children if you’re
under the influence.”
The defendant appealed, arguing the district court improperly
speculated that he was under the influence while working at the day care
in determining his sentence. The court of appeals affirmed the defendant’s
sentence. On our review, we vacate the defendant’s sentence and remand
for resentencing because the record did not support the district court’s
speculation that the defendant was working at the day care while under
the influence of marijuana.
I. Background Facts and Proceedings.
On March 6, 2019, Mason City police officers Corby Friederich and
David Studer were driving an unmarked vehicle when they observed
William Fetner driving a red Ford Escape. The officers confirmed through
dispatch that Fetner was barred from driving in Iowa and proceeded to
follow Fetner. Fetner pulled over and got out of the vehicle, so the police
stopped Fetner and arrested him. The police did not locate anything illegal
upon their search incident to arrest.
3
Almost a month later on April 5 at around 8:00 p.m., Officer Nathan
Sneider responded to the report of a traffic collision at a Mason City
intersection. Upon arrival, Officer Sneider observed a male in a blue car
and three people in or around a white Ford Explorer—Fetner and another
male were near the explorer and a juvenile female was inside the Explorer.
Fetner told Officer Sneider he had just been “jumped” at McDonald’s and
the traffic collision occurred as he was trying to leave.
Around that time, Lieutenant Dana Knutson arrived to assist Officer
Sneider, so Officer Sneider went to check on the juvenile passenger still
inside the Explorer. In doing so, Officer Sneider observed marijuana in
the vehicle and underneath the juvenile passenger. Lieutenant Knutson
pointed out an upside down Frisbee that appeared to be functioning as a
sorting tray. The officers also observed a bag belonging to Fetner that
contained medical paperwork bearing Fetner’s name, a wooden box with
drug paraphernalia inside, and marijuana. They also located a glass
marijuana pipe on the rear floorboards. Fetner informed the officers that
all drugs and paraphernalia in the Explorer belonged to him and named
every item individually.
Officer Sneider placed Fetner under arrest and read Fetner his
Miranda warning. While Officer Sneider transported Fetner to jail, Fetner
continued to make incriminating statements about his possession of
marijuana. For instance, Fetner told Officer Sneider “that he always has
marijuana” and “reiterated several times that he was about to smoke some
marijuana before [the police] arrived.” As a result of the March 6 and
April 5 events, Fetner pled guilty to possession of a controlled substance,
third or subsequent offense, in violation of Iowa Code sections 124.401(5)
and 124.204(4)(m) (2018) and driving while barred, in violation of section
321.561. Fetner’s possession charge was enhanced to an aggravated
4
misdemeanor due to his prior drug-related convictions. The record shows
he has six prior marijuana convictions and has previously been
imprisoned on drug charges.
On September 16, the district court accepted Fetner’s guilty pleas
and proceeded to conduct a sentencing hearing. With Fetner’s consent,
the district court relied on Fetner’s written pleas of guilty and the minutes
of testimony to accept his plea. At the hearing, the State requested “an
indeterminate term not to exceed two years on each one of those” charges
with “the prison terms [to] run consecutive” based on Fetner’s criminal
history. Fetner’s counsel advocated for a suspended sentence, explaining,
Your Honor, basically he’s terrified to go back to prison. It
was a pretty traumatic experience for him. As Mr. Dalen
indicated and Mr. Fetner told you, he’s just 31 today, and
there’s no doubt that he needs structure and supervision . . . .
One of the issues he does have is the anxiety. He’s, I
guess, not very consistent with taking his medications so the
marijuana seems like basically a way to self-medicate for the
anxiety that he feels. He, Your Honor, does have a son, who
is in court here today. He hasn’t seen him for the time period
of his incarceration. He does live now in Manly. He has a
home there with a significant other and the two of them, along
with, I believe, a third person, are running a day care center
and so he helps where he can there in an effort to keep the
expenses down for their home but also to provide for the
family, and Your Honor, he does have the ability to be
successful on probation . . . .
After Fetner’s counsel finished speaking, the district court told
Fetner he had “the right of allocution, which is your opportunity to tell me
anything else you’d like me to consider before I decide what your sentences
should be” and asked Fetner, “Is there anything you want me to know?”
Fetner responded, “No, ma’am.”
The district court sentenced Fetner to consecutive sentences of
incarceration not to exceed two years for both charges. It provided the
following explanation for its sentence during the hearing:
5
Mr. Fetner, at the time of sentencing I’m required to impose a
sentence that I feel is appropriate to meet your needs for
rehabilitation and also to do what’s necessary to protect the
community from any further offenses by you or by others.
There’s a number of things that factor into that: Your age,
your prior criminal history, your employment and family and
personal circumstances that I’ve been made aware of, the
nature of the charge, the recommendation of the parties, and
anything else that I’ve learned about you throughout the
proceeding.
Mr. Fetner, certainly any time I have a defendant here
who’s, you know, in on a second or third or in your case, you
know, someone who’s charged six time[s] for the same offense,
it’s clear that whatever we’ve done in the past has not been
sufficient to rehabilitate you, and there’s obviously a finite
number of options we have for sentencing, you know, and
those range from what your attorney is asking for, which is a
suspended sentence and placement in the community, you
know, with some support services from probation, you know,
and range up to, you know, prison, which is what the state is
recommending.
When I look at all these factors, Mr. Fetner, there’s a
number of concerns. Obviously the main one being the
continuation of these same types of offenses over and over
again. You know, despite that, you’ve got a wide variety of
things in your criminal history, not just the drug offenses but
OWI’s, you know, and a number of driving offenses but also
harassment, theft, assault, absence from custody, and, you
know, for a person your age, you’ve amassed an unfortunately
long criminal history. That’s only one of the factors that I look
at, but it’s clear that, you know, you are persistent in your use
of an illegal substance. I am terrified you’ve been helping in
a day care. I would think that if the parents knew your
history, they would definitely pull their children out of, you
know, any day care. It’s not safe for you to be caring for
children if you’re under the influence. I totally understand
that, you know, as you sit here today, that you are worried
about returning to prison. The only way to make sure that
you don’t go back there is to stop breaking the law and that’s
a lesson that you have not learned yet. On each of these
charges, I’m going to impose an indeterminate prison term not
to exceed two years. For the reasons stated, those sentences
are not suspended and they are ordered to be served
consecutively.
Fetner filed a timely appeal, arguing the district court considered an
“impermissible” and “irrelevant” factor when it “considered unproven
allegations that Fetner worked in a daycare center and speculation that
6
Fetner did so while under the influence of a controlled substance” in
reaching its sentencing decision. We transferred the case to the court of
appeals, which concluded “the district court did not consider an
impermissible or irrelevant factor in incorporating those representations”
because Fetner’s attorney raised those facts in seeking mitigation of
Fetner’s sentence and Fetner acquiesced to them. Fetner applied for
further review, and we granted his application.
II. Standard of Review.
We review a sentence imposed in a criminal case for correction of
errors at law. State v. Damme, 944 N.W.2d 98, 103 (Iowa 2020). “We
afford sentencing judges a significant amount of latitude because of the
‘discretionary nature of judging and the source of the respect afforded by
the appellate process.’ ” State v. Boldon, 954 N.W.2d 62, 73 (Iowa 2021)
(quoting State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002)). When the
sentencing decision falls within the statutory limits, it “is cloaked with a
strong presumption in its favor.” Id. (quoting Formaro, 638 N.W.2d at 724).
Nevertheless, resentencing of the defendant is necessary if the sentencing
court used an improper consideration, “even if it was merely a ‘secondary
consideration.’ ” Id. (quoting State v. Grandberry, 619 N.W.2d 399, 401
(Iowa 2000) (en banc)).
III. Analysis.
Fetner maintains he is entitled to resentencing because the district
court violated his due process and equal protection rights under the Fifth
and Fourteenth Amendments of the United States Constitution and article
I, section 1 and article I, section 9 of the Iowa Constitution by considering
“an impermissible sentencing factor not established by any allegation in
the record when sentencing Fetner.” To the extent Fetner is raising a
constitutional claim, he failed to preserve it and we will not address it on
7
appeal. See State v. Gordon, 921 N.W.2d 19, 23 (Iowa 2018) (“Gordon is
not claiming his sentence is intrinsically unconstitutional. If this were the
case, he would not need to preserve error for us to decide the issue on
appeal. Rather, his claim is that the use of the risk assessment tools
violates his due process rights. There are distinctions between claiming
the sentence is intrinsically unconstitutional and claiming errors in the
proceedings prior to imposition of sentence . . . . Because Gordon’s claim
does not involve the inherent power of the court to sentence him for his
crime, the normal rules of error preservation apply.” (citations omitted)).
However, Fetner’s briefing does not provide a constitutional analysis of his
claims and seems to actually be arguing the district court considered an
unproven or improper sentencing factor. Thus, Fetner’s argument “is
simply [an issue] of the sufficiency of the record to establish the matters
relied on,” which Fetner did not need to preserve. Grandberry, 619 N.W.2d
at 401; see also Gordon, 921 N.W.2d at 23. Therefore, we will address
Fetner’s claim that the district court considered an improper sentencing
error.
Fetner contends the district court should not have accepted “the
allegation that [he] worked at a daycare center while under the influence
of a controlled substance,” claiming nothing in the record supported the
district court’s conclusion that Fetner worked at a day care.1 Fetner later
walked back his claim somewhat in his reply brief, acknowledging there
was indeed support in the record that Fetner worked in a day care center
1In addition to challenging Fetner’s claims on the merits, the State asks us to
dismiss Fetner’s appeal under Iowa Code section 814.6, which establishes there is no
right of appeal from a guilty plea unless the defendant establishes “good cause.” Iowa
Code § 814.6(1)(a)(3) (2019). We decided Damme after the parties submitted their briefs
in this case. In Damme, we held the good-cause requirement is satisfied “when the
defendant challenges his or her sentence rather than the guilty plea.” 944 N.W.2d at
105. That requirement is met under Fetner’s challenge to his sentence in this case, so
section 814.6 does not bar Fetner’s appeal.
8
based on the comments his counsel made at sentencing. Nevertheless,
Fetner still claims the district court should not have considered it because
“[t]here was no sworn testimony of any sort regarding this point, nor is
there any evidence that this brief statement by counsel was intended to be
a professional statement.” According to Fetner, the admissions from
Fetner’s counsel at sentencing about his employment at a day care and
marijuana use were not binding admissions on Fetner and thus improper
sentencing factors.
We have previously explained that a sentencing court cannot
consider unproven or unprosecuted offenses in fashioning a defendant’s
sentence unless the defendant admits them or facts are presented to prove
them. Gordon, 921 N.W.2d at 25. Here, Fetner’s counsel told the
sentencing court both that Fetner was using marijuana “to self-medicate
for the anxiety he feels” and that Fetner was “running a day care center”
with his significant other and a third person where he helped when he
could “to keep the expenses down for their home but also to provide for
the family.” When the district court asked Fetner if he had anything to
add after these statements, Fetner said he did not. This amounted to an
admission by acquiescence to the facts Fetner now contests, and the
district court was within its authority to rely on those facts in crafting
Fetner’s sentence.
Fetner claims that “[t]here was no sworn testimony of any sort”
about Fetner’s work at the day care and that “there [is not] any evidence
that this brief statement by counsel was intended to be a professional
statement.” Quoting State v. Howell, 290 N.W.2d 355, 359 (Iowa 1980),
Fetner asserts that counsel was required to make a “distinct and formal”
admission “for the express purpose of dispensing with formal proof of a
fact.” However, Fetner misconstrues this language from Howell, which
9
dealt with whether an attorney’s admissions were admissible against his
client on cross-examination during trial. Id. “The standard of proof during
the sentencing stage is lower than the standard used during trial.”
Grandberry, 619 N.W.2d at 401. In the sentencing context, Fetner’s
acquiescence to the statements of his counsel at sentencing was all that
was required for the statements to constitute an admission.
While a professional statement is not required at sentencing in the
technical sense, counsel’s statements on the record at sentencing are akin
to a professional statement. A professional statement is simply “used as
a matter of convenience and practical necessity[] to establish a record of
matters peculiarly within the knowledge of an attorney,” and attorneys
offering such a statement “pledge[] the honor of [their] profession and
[their] personal integrity.” State v. Brewer, 247 N.W.2d 205, 212 (Iowa
1976). Professional statements have “the effect of an affidavit.” Id. As we
have stressed in the past, “No attorney should make a professional
statement lightly or without being certain of the facts which are the subject
of the statement.” Id. Nothing in the record suggests Fetner’s counsel was
not acting accordingly.
We approved a similar admission as a sentencing consideration in
State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (per curiam). There,
we concluded the district court properly considered a presentence
investigation report containing statements the defendant made to an
investigator about the defendant’s participation in the sale of cocaine. Id.
Although the charges against the defendant stemming from this sale of
cocaine were subsequently dropped, we explained the district court could
consider the defendant’s statements to the investigator about his
participation in the sale as an admission to the offense because the
defendant never made any material corrections to the report when it was
10
presented to him. Id.; see also Grandberry, 619 N.W.2d at 402 (holding
the district court could consider data in the presentence investigation
report obtained from other sources during sentencing when the accused
does not contest that data); Gordon, 921 N.W.2d at 25 (holding the district
court did not abuse its discretion in relying on information contained in
the presentence investigation concerning the defendant’s arrest and drug
possession charge or the circumstances surrounding his arrest in the
company of a missing juvenile female because the defendant never
challenged the information).
Likewise, if counsel’s statements about Fetner’s use of marijuana to
self-medicate for his anxiety and his employment at a day care were
incorrect, Fetner could have corrected them when he had the opportunity
at his sentencing hearing. Instead, he indicated he had nothing to add to
his counsel’s statements when the district court asked him.
Consequently, the district court’s consideration of Fetner’s employment at
a day care and his use of marijuana to self-medicate as separate
sentencing factors was not improper.
With that said, it was improper for the district court to speculate
that Fetner was under the influence while he was working at the day care
based on the information presented at sentencing. Arguably, the district
court was discussing Fetner’s lengthy criminal history in general when it
stated, “I am terrified you’ve been helping in a day care. I would think if
the parents knew your history, they would definitely pull their children out
of, you know, any daycare.” But the full context suggests the district court
had concluded Fetner worked at the day care under the influence of
marijuana and considered that in sentencing Fetner. Specifically, the
district court followed its statement about parents pulling their children
11
from the day care by declaring, “It’s not safe for you to be caring for
children if you’re under the influence.”
While one could infer Fetner was under the influence at work based
on separate admissions to using marijuana to treat his anxiety and to
working at a day care center, in addition to his lengthy record of drug
convictions, the district court was not presented with any evidence to
actually prove Fetner was under the influence at work. The record does
not explain how often Fetner worked at the day care, what his hours were
like, how often he used marijuana, or when he smoked marijuana.
Further, although Fetner told Officer Sneider “that he always has
marijuana” as he was being transported to jail, the record itself contradicts
the notion that Fetner always had marijuana with him. Thus, the district
court could not so much as conclude Fetner possessed marijuana around
the day care children. Notably, the police found nothing illegal—including
marijuana—in their search of Fetner’s vehicle incident to arrest just a
month before Fetner’s arrest for possession in this case.
Ultimately, nothing Fetner or his counsel said ever connected the
dots between his marijuana use and employment that would result in an
admission that he was under the influence at work, nor do the facts before
the court show Fetner was caring for children at the day care center while
he was under the influence. See Gordon, 921 N.W.2d at 25 (“A court may
not consider an unproven or unprosecuted offense when sentencing a
defendant unless (1) the facts before the court show the accused
committed the offense, or (2) the defendant admits it.” (quoting State v.
Witham, 583 N.W.2d 677, 678 (Iowa 1998) (per curiam)). An admission to
using marijuana is not an admission to being under the influence at work.
The district court’s speculation about Fetner working under the influence
was improper based on the information it had before it. “[W]e cannot
12
speculate about the weight [the district] court mentally assigned this
factor, or whether it tipped the scales to imprisonment.” State v. Messer,
306 N.W.2d 731, 733 (Iowa 1981). Therefore, we must remand Fetner’s
case to the district court for resentencing without consideration of this
improper factor.
IV. Conclusion.
We vacate the decision of the court of appeals and Fetner’s sentence
and remand to the district court for resentencing.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
Appel, McDonald, Oxley, and McDermott, JJ., join this opinion.
Mansfield, J., files a dissenting opinion in which Waterman, J., joins.
13
#19–1561, State v. Fetner
MANSFIELD, Justice (dissenting).
I respectfully dissent. Iowa Rule of Criminal Procedure 6.23(3)(d)
requires the district court to “state on the record the reason for selecting
the particular sentence.” Iowa R. Crim. P. 6.23(3)(d). This rule defines the
district court’s duty—and gives it an opportunity—to address the
defendant personally and explain why it is choosing a particular sentence.
The pronouncement of sentence is intended to make an impression
on the defendant. Often I believe it does. So while it is important that
judges exercise sentencing discretion properly, appellate courts should not
intervene over matters of word choice that do not amount to an abuse of
sentencing discretion. It would be a loss for our justice system if district
courts stopped speaking directly to defendants and, instead, mechanically
recited statutory sentencing factors for fear of doing anything that might
get themselves reversed.
Here, I do not think the district court crossed the line. The court
drew permissible inferences from the record and considered proper
sentencing factors.
William Fetner is thirty-one years old. According to his affidavits for
appointment of counsel, he was making $0 at the time of his arrests and
had earned $0 over the past twelve months. In May 2009, July 2010, April
2012, March 2014, and September 2014, Fetner received convictions or
deferred judgments for possession of marijuana. He also had convictions
in June 2009 (harassment by communication), September 2010 (driving
while license denied or revoked), July 2010 (operating while intoxicated),
November 2011 (theft fifth degree), April 2012 (possession of drug
paraphernalia and operating while intoxicated second offense), March
2013 (theft fifth degree), July 2013 (theft fifth degree), August 2013 (theft
14
fifth degree), October 2013 (theft fifth degree), March 2014 (driving while
barred as a habitual offender), December 2015 (voluntary absence from
custody and assault), and November 2018 (driving while barred as a
habitual offender). In 2014, an accumulation of criminal charges,
including a conviction for possession of marijuana with intent to deliver,
led to Fetner’s being sent to prison. Twice, Fetner was put on work release,
only to have the work release revoked resulting in his return to prison. In
June 2018, Fetner discharged his sentence.
Fetner’s current charges for driving while barred and possession of
marijuana, third or subsequent offense, stem from events in March and
April 2019. Fetner was arrested for the marijuana charges when he,
another man, and a juvenile girl were found at the scene of a vehicle
collision with marijuana in several different containers in their vehicle.
Fetner admitted on the way to jail that “he always has marijuana,” that he
“was about to smoke marijuana,” and that he “had marijuana with him.”
Fetner posted bail but did not appear for a pretrial conference, and an
arrest warrant had to be issued. In September 2019, Fetner pled guilty to
both charges. The following month, he appeared at sentencing, where his
attorney made a plea that he not be sent back to prison for the following
reasons:
[I]t is correct in what [the county attorney] said, he has been
ordered to prison for a Possession With Intent to Deliver
Marijuana and that was in 2014, a conviction. Your Honor,
basically he’s terrified to go back to prison. It was a pretty
traumatic experience for him. As [the county attorney]
indicated and Mr. Fetner told you, he’s just 31 today, and
there’s no doubt that he needs structure and supervision,
Your Honor, and we would be asking that the term of -- in the
Possession of Marijuana Charge, that the term not to exceed
two years, that that be suspended and he be placed on
probation.
One of the issues he does have is the anxiety. He’s, I
guess, not very consistent with taking his medications so the
15
marijuana seems like basically a way to self-medicate for the
anxiety that he feels. He, Your Honor, does have a son, who
is in court here today. . . . He has a home there with a
significant other and the two of them, along with, I believe, a
third person, are running a day care center and so he helps
where he can there in an effort to keep the expenses down for
their home but also to provide for the family, and, Your Honor,
he does have the ability to be successful on probation, and it
does swing on the idea that he has to eliminate all of the
negative things that are in his life, including individuals who
smoke marijuana, who use marijuana that he was caught with
in this particular case, and that does not alleviate him of any
responsibility, but he definitely -- his life is, you know, headed
down the wrong way and we’d like to have that opportunity
for him on his -- on the possession with marijuana, the third
or subsequent offense, that that be suspended with the two
years[’] probation and, of course, substance abuse evaluation,
follow through with treatment recommendations, continuing
his mental health programming . . . .
(Emphasis added.)
The defendant declined to say anything himself by way of allocution.
After the district court had heard from the attorneys, the court stated in
part as follows:
Mr. Fetner, at the time of sentencing I’m required to impose a
sentence that I feel is appropriate to meet your needs for
rehabilitation and also to do what’s necessary to protect the
community from any further offenses by you or by others.
There’s a number of things that factor into that: Your age,
your prior criminal history, your employment and family and
personal circumstances that I’ve been made aware of, the
nature of the charge, the recommendation of the parties, and
anything else that I’ve learned about you throughout the
proceeding.
Mr. Fetner, certainly any time I have a defendant here
who’s, you know, in on a second or third or in your case, you
know, someone who’s charged six times for the same offense,
it’s clear that whatever we’ve done in the past has not been
sufficient to rehabilitate you, and there’s obviously a finite
number of options we have for sentencing, you know, and
those range from what your attorney is asking for, which is a
suspended sentence and placement in the community, you
know, with some support services from probation, you know,
and range up to, you know, prison, which is what the state is
recommending.
16
When I look at all these factors, Mr. Fetner, there’s a
number of concerns. Obviously the main one being the
continuation of these same types of offenses over and over
again. You know, despite that, you’ve got a wide variety of
things in your criminal history, not just the drug offenses but
OWI’s, you know, and a number of driving offenses but also
harassment, theft, assault, absence from custody, and, you
know, for a person your age, you’ve amassed an unfortunately
long criminal history. That’s only one of the factors that I look
at, but it’s clear that, you know, you are persistent in your use
of an illegal substance. I am terrified you’ve been helping in a
day care. I would think that if the parents knew your history,
they would definitely pull their children out of, you know, any
day care. It’s not safe for you to be caring for children if you’re
under the influence. I totally understand that, you know, as
you sit here today, that you are worried about returning to
prison. The only way to make sure that you don’t go back
there is to stop breaking the law and that’s a lesson that you
have not learned yet.
(Emphasis added.)
Defense counsel viewed Fetner’s working in a day care as a positive.
However, the district court is required to determine the sentence that
would provide maximum opportunity for Fetner’s rehabilitation and
protection of the community from further offenses. See Iowa Code § 901.5
(2019). It saw Fetner’s unrehabilitated presence in the day care as a
negative. Most Iowans, I suggest, would share the district court’s
common-sense perspective.
As the majority opinion acknowledges, the district court’s sentence
“is cloaked with a strong presumption in its favor.” State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002). Fetner “must overcome the presumption in
favor of the sentence by affirmatively demonstrating the court relied on an
improper factor.” State v. Damme, 944 N.W.2d 98, 106 (Iowa 2020); see
also State v. Wickes, 910 N.W.2d 554, 572 (Iowa 2018) (“A defendant must
affirmatively show that the sentencing court relied on improper evidence
to overcome this presumption of validity.”); State v. Hopkins, 860 N.W.2d
550, 554 (Iowa 2015) (same); State v. Sailer, 587 N.W.2d 756, 763–64 (Iowa
1998) (affirming sentence when defendant did not establish “any reliance
17
on improper factors which would overcome the presumption that the
district court properly exercised its discretion”). Fetner failed to meet his
burden.
In this case, the district court did not consider an unproven or
unprosecuted offense. See, e.g., State v. LeGrand, 501 N.W.2d 59, 63–64
(Iowa Ct. App. 1993) (rejecting such an argument where the district court’s
comments were based on facts in the record and the defendant’s criminal
history). It drew a rational inference based on undisputed facts. Actually,
it didn’t even draw an inference; it just raised a reasonable question.
Based on the undisputed facts that (1) Fetner is an active marijuana user
who seems to self-medicate with marijuana for anxiety and (2) Fetner
helps out in a day care and has no other employment, the district court
observed that if Fetner is caring for children while under the influence,
that would not be safe. This is an entirely legitimate question to raise.
After all, what could be more stressful than managing young children?
So this case really comes down to word selection in the three
sentences italicized above. For example, the district court said it was
“terrified.” That’s a bad choice of words, although perhaps one suggested
by defense counsel’s prior use of the same word.
Let’s engage in a thought experiment. Suppose the district court
had said essentially the same thing but more diplomatically. For instance:
I am concerned you’ve been helping in a day care. I think
parents familiar with your background would not want their
children to be attending that day care. If you are actually under
the influence while caring for children, that would not be safe.
In that event, I submit we would be affirming Fetner’s sentence without a
second thought. Accordingly, I would affirm the district court and the
court of appeals here.
Waterman, J., joins this dissent.