                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1240 / 13-0039
                             Filed February 5, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES BLAKE CARY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, John M.

Wright, Judge.



      A defendant appeals his sentence following his guilty pleas. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Patrick C. Jackson, County Attorney, and Lisa K. Schaefer and Tyron

Rogers, Assistant County Attorneys, for appellee.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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VOGEL, P.J.

      James Blake Cary appeals the sentence imposed following his guilty pleas

to one count of robbery in the second degree and two counts of burglary in the

third degree. He claims the court considered improper sentencing factors when it

decided to run the two counts of burglary concurrent to each other but

consecutive to the robbery count and consecutive to the sentences he was

already serving. He claims the court considered an unproven offense when it

incorrectly recited his criminal history and improperly considered the length of

time he would serve on his sentence. We find no abuse of the trial court’s

discretion and affirm Cary’s sentence.

I. BACKGROUND FACTS AND PROCEEDINGS.

      At sentencing, pursuant to the plea agreement, the State remained silent

as to its recommendation for imposing either consecutive or concurrent

sentences. Cary’s attorney argued the sentences should be concurrent to each

other and concurrent to the sentences Cary was already serving on unrelated

charges. While acknowledging the mandatory seventy-percent minimum on the

robbery charge, counsel “strongly urge[d] the court to reach the conclusion that

that seven years is going to be more than adequate to take care of Mr. Cary’s

problems, to adequately protect the community.” Counsel went on to say that if

the court ran the sentences concurrently, he reasonably believed that Cary would

“get out of prison when he’s approximately twenty-eight years old.” Counsel

noted that running the sentences consecutively would likely “add two to three

years onto the sentence” and believed “seven years [was] more than adequate to

cover the offenses that [Cary] pled guilty to and that he’s taking responsibility
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for.” Likewise, during his allocution, Cary asked the court “to be nice, because I

feel like a seven-year sentence is a long time” and that was “adequate.”

       The court in imposing the sentence spent a great deal of time reviewing

the factors it considered in reaching its sentencing decision. The court noted the

mandatory minimum sentence of seven years on the robbery conviction pursuant

to Iowa Code section 902.12 (2011). The court considered the statements made

by Cary’s attorney, along with Cary’s statement.       Cary’s age, family support,

criminal history, lack of income or stable work history, education, history of drug

abuse, and potential for rehabilitation were all considered by the court. In reciting

Cary’s criminal history, the court stated:

       You are already serving sentences, as your attorney pointed out,
       for Forgery, a class D felony. You have convictions for Burglary, for
       Attempted Burglary, Theft, Domestic Abuse, Harassment, and you
       have just been a menace to your family and to the community for
       quite a few years even though you’re only 21 years of age.

(Emphasis added.) Following its pronouncement of the sentence, Cary’s counsel

asked the court for a more specific recitation of the reason why the sentences

would run consecutively. The court, in response, stated:

              As I’ve already stated, your client has a serious history of
       criminal convictions. It is a very serious offense for which he was
       convicted of the Second Degree Robbery. These are serious
       offenses of Burglary in the Third Degree. The Court has given
       some consideration to the length of time Mr. Cary will serve on
       these sentences and has decided to run two of the class D felonies
       concurrent. Those will run consecutively, as I indicated. The Court
       also takes into consideration everything else I’ve already put onto
       the record as to why these sentences will run consecutive in the
       fashion that I’ve already indicated.

(Emphasis added.) Cary appeals.
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II. SENTENCING.

      We review a district court’s sentencing decision for abuse of discretion.

State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994).              “The use of an

impermissible sentencing factor is viewed as an abuse of discretion and requires

resentencing.” Id. Cary asserts the court considered an unproven offense when

it stated he had previously been convicted of burglary. While he had previously

been charged as a juvenile with burglary, he was adjudicated delinquent of

attempted burglary. He also claims the court improperly considered the length of

time he would actually serve on his sentence, which interfered with the authority

of the parole board.

      A. Unproven Offense. A sentencing court may not rely upon unproven

charges unless the defendant admits to the charges or there are facts that show

the defendant committed the offenses. State v. Formaro, 638 N.W.2d 720, 725

(Iowa 2002). If the court considers an unproven charge, a remand is necessary

for resentencing. Id.

      The State acknowledges the reference made by the court to a prior

burglary conviction but claims the court simply misspoke as it was reviewing the

presentence investigation report, which listed both the arresting charge and the

conviction, and immediately corrected the error. It points out the court started

listing Cary’s prior convictions by saying, “You have convictions for burglary.”

(Emphasis added.) The State contends the court paused and reiterated “for

attempted burglary, theft, domestic abuse, [and] harassment.”         (Emphasis

added.) Because none of the subsequent convictions were preceded by the

preposition “for,” the State asserts the court recognized its error in saying
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burglary and was simply restarting the list of past convictions with the correct

prior conviction of attempted burglary.

      A court’s sentencing decision “enjoys a strong presumption in its favor,”

and a defendant must overcome this presumption by “affirmatively show[ing] the

district court relied on improper evidence such as unproven offenses.” State v.

Jose, 636 N.W.2d 38, 41 (Iowa 2001).           “We will not draw an inference of

improper sentencing considerations which are not apparent from the record.”

Formaro, 638 N.W.2d at 725.       We cannot say on this record that Cary has

overcome this strong presumption and proven the court improperly relied on a

prior burglary charge. While the pause the State refers to is not indicated in the

transcript, the subsequent, additional use of the preposition “for” is apparent in

the record. We accept the State’s interpretation of the record that the court

misspoke and was correcting itself by restarting the list of prior offense with the

repetition of the preposition “for.” While the court could have made the correction

clearer by affirmatively acknowledging it misspoke, we cannot say the record in

this case demonstrated the court abused its discretion by relying on the unproven

charge of burglary when sentencing Cary.

      B.    Length of Sentence.           Next, Cary claims the court improperly

considered the length of time he would serve on his sentence. The board of

parole has the sole authority to determine a defendant’s minimum sentence with

its parole decisions. State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977). “It is

inappropriate to circumvent parole considerations in a judicial sentencing

decision.” Thomas, 520 N.W.2d at 313. However, in this case we do not find the
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court’s comment that it gave “some consideration to the length of time Mr. Cary

will serve” to be an attempt to circumvent parole considerations.

      First, the parole board did not have authority to determine Cary’s minimum

sentence with regard to the robbery conviction due to the seventy percent

statutory mandatory minimum in section 902.12.        See Iowa Code § 902.12

(stating a person convicted of certain felonies, including second-degree robbery,

shall be denied parole or work release until the person has served at least seven-

tenths of the maximum term of the sentence); see also Remmers, 259 N.W.2d at

784 (acknowledging the legislature may restrict the discretion of the parole board

by proscribing a minimum sentence for particular offenses). Secondly, it was

entirely appropriate for the court to consider this statutory mandatory minimum in

rendering a sentencing decision in this case.        Defense counsel and Cary

repeatedly referred to the seven-year minimum in their statements to the court,

contending the minimum was “adequate” punishment for the robbery and the

burglary offenses. Defense counsel even went so far as to indicate to the court

that running the sentences consecutively “will likely add two to three years onto

the sentence.”

      We find the court’s single, general reference to its consideration of the

length of time Cary will serve was simply an acknowledgement and response to

defense counsel’s argument that the mandatory minimum sentence on the

robbery conviction would be sufficient. The court clearly disagreed considering

Cary’s extensive criminal history and the seriousness of the current convictions.

There is no indication the court was attempting to craft a sentence to circumvent

the parole board’s authority or to manipulate Cary’s sentence. See Remmers,
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259 N.W.2d at 784 (noting the court improperly imposed a lengthier maximum

sentence “based in part upon a desire to assure [the] defendant would serve a

longer period before parole”). The court here was simply stating that the seven-

year mandatory minimum was not adequate considering the facts and

circumstances in this case. See State v. Vanover, 559 N.W.2d 618, 635 (Iowa

1997) (noting the court did not impermissibly attempt to lengthen the defendant’s

sentence because of parole factors where it merely responded to the defense

counsel’s calculations as to the application of the mandatory minimum and gave

several cogent reasons for imposing the sentence it chose). We do not find any

abuse of the trial court’s discretion in sentencing Cary.

       AFFIRMED.

       Tabor, J., concurs; McDonald, J., dissents.
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MCDONALD, J. (dissenting)

      I respectfully dissent.    I recognize “the sentencing process can be

especially   demanding     and   requires    trial   judges   to   detail,    usually

extemporaneously, the specific reasons for imposing the sentence.” State v.

Thomas, 520 N.W.2d 311, 313-14 (Iowa Ct. App. 1994). The performance of this

judicial duty can produce unfortunate phraseology, unintended remarks,

misconstrued remarks, and just plain misstatements. See id. Here, the district

court explicitly stated that it considered defendant’s burglary conviction when

considering defendant’s sentence. It is not disputed that defendant has not been

convicted of burglary.

      The State argues that the sentencing court’s statement was only a

misstatement that should be ignored. The State contends the sentencing court

“paused” after making the statement.        There is no pause reflected in the

sentencing transcript.   The State contends the district court’s use of the

preposition “for” evidences a pause or intent to correct.          That is simply

speculation. The transcript shows when the district court wanted to correct the

record, it used the phrase “strike that.”   While it is true that the sentencing

decision enjoys a strong presumption in its favor, State v. Jose, 636 N.W.2d 38,

41 (Iowa 2001), this presumption means only that we will not draw an inference

of improper sentencing considerations not apparent in the record.            State v.

Formaro, 638 N.W.2d 720, 725 (Iowa 2002). The presumption does not go so far

as to negate an instance when the sentencing court explicitly states it is relying

on an impermissible sentencing consideration.
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       In sum, the district court may have made a misstatement, but that cannot

be determined from this record. The only thing that can be determined from this

record, without resort to speculation, is that the district court explicitly stated it

considered defendant’s burglary conviction when imposing sentence when the

defendant has not been convicted of burglary. This requires the sentence be

vacated and this matter remanded for sentencing. See State v. Gonzalez, 582

N.W.2d 515, 516 (Iowa 1998) (noting the general rule a court “may not consider

an unproven or unprosecuted offense when sentencing a defendant”).
