                IN THE SUPREME COURT OF IOWA
                              No. 13–1895

                        Filed December 19, 2014


STATE OF IOWA,

      Appellee,

vs.

WARREN WILLIAM LOVELL,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Muscatine County, Mary E.

Howes, Judge.



      The defendant seeks further review of a court of appeals decision

affirming his sentence. DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT SENTENCE VACATED AND CASE REMANDED FOR

RESENTENCING.


      Mark C. Smith, State Appellant Defender, and Melinda J. Nye,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Heather A. Mapes, Assistant

Attorney General, and Alan Ostergren, County Attorney, for appellee.
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PER CURIAM.

      Warren William Lovell appeals from his sentence following

resentencing for two counts of incest.         In August 2012, Lovell was

charged with two counts of sexual abuse in the third degree and pled

guilty to two counts of incest, in violation of Iowa Code section

726.2 (2011).     The district court sentenced Lovell to two consecutive

terms of incarceration not to exceed five years, but during sentencing

relied upon the unproven allegation that Lovell paid the victim money in

exchange for sex. Lovell appealed. We granted a summary reversal and

remanded the case for resentencing before a different judge on the

grounds the district court had relied upon an improper sentencing

consideration.

      Upon resentencing, the district court again sentenced Lovell to two

consecutive terms of incarceration not to exceed five years, but in doing

so again referred to the impermissible sentencing factor stating,

      Well, Mr. Lovell, the problem with your case is, although you
      have a lack of criminal history, this is extremely offensive,
      obviously, in the eyes of the law, and in the eyes of the Court
      because [the victim] was in a vulnerable position. . . . In
      reading the case, she is desperate for diapers for her baby,
      and then, for sex, you’re giving her money.

When Lovell’s attorney informed the district court that reference to the

same impermissible sentencing factor was the reason the case was

remanded for resentencing, the district court attempted to disclaim such

reference by saying, “Right, and I’m not relying on that, which it’s in the

Minutes of Testimony, but I guess, he didn’t plead guilty to that.” The

district court continued, “Okay. Well, it’s incest, and it’s offensive to the

Court.”

      The   law    is   clear   regarding   consideration   of   impermissible

sentencing factors. We will not vacate a sentence on appeal “unless the
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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. Witham, 583 N.W.2d 677, 678 (Iowa

1998).   However, “[i]f 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) (quoting State v. Messer, 306 N.W.2d 731,

733 (Iowa 1981)). Information contained in the minutes of testimony is

not a permissible sentencing consideration if unproven. “The sentencing

court should only consider those facts contained in the minutes [of

testimony] that are admitted to or otherwise established as true.” State

v. Black, 324 N.W.2d 313, 316 (Iowa 1982); see also State v. Gonzalez,

582 N.W.2d 515, 517 (Iowa 1998) (“Where portions of the minutes [of

testimony] are not necessary to establish a factual basis for a plea, they

are deemed denied by the defendant and are otherwise unproved and a

sentencing court cannot consider or rely on them.”).

      Here, although the district court attempted to disclaim the

reference to the impermissible sentencing factor, “we cannot speculate

about the weight the sentencing court gave to these unknown

circumstances. Since we cannot evaluate their influence, we must strike

down the sentence.” Black, 324 N.W.2d at 316. In order to protect the

integrity of our judicial system from the appearance of impropriety, we

vacate the defendant’s sentence and remand the case to the district court

for resentencing before a different judge consistent with this opinion.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT     SENTENCE        VACATED        AND   CASE    REMANDED           FOR

RESENTENCING.

      This opinion shall be published.
