                    IN THE COURT OF APPEALS OF IOWA

                                      No. 14-1208
                                 Filed March 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

REBECCA LYNN OELMANN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wright County, Paul B. Ahlers,

District Associate Judge.



      Rebecca Oelmann appeals from the sentence imposed following her guilty

plea, asserting the district court considered an improper sentencing factor.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Eric Simonson, County Attorney, and Jonathan Murphy, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

        Rebecca Oelmann appeals the sentence imposed following her guilty

plea.   She asserts the sentencing court considered an improper sentencing

factor. We find the district court did not rely on an improper factor in sentencing

Oelmann.     Accordingly, we conclude there was no defect in the sentencing

procedure. We therefore affirm.

        The State originally charged Oelmann with the crime of theft in the second

degree, in violation of Iowa Code sections 714.1(1) and 714.2(2) (2013), a class

“D” felony. The charge arose out of Oelmann’s presenting checks written on a

closed account on September 3 and 4, 2013. Oelmann and the State reached a

plea agreement. The State agreed to amend the charge to theft in the third

degree, in violation of Iowa Code sections 714.1(6) and 714.2(3), an aggravated

misdemeanor, and Oelmann agreed to plead guilty to the amended charge. The

State also agreed to recommend a sentence of 120 days in jail with all but four

suspended, in forty-eight-hour increments, probation for one year, restitution,

plus a fine, costs, and miscellaneous surcharges.      Additionally, the sentence

would run concurrent with a sentence imposed against Oelmann in Franklin

County.    The court accepted Oelmann’s guilty plea and set sentencing for

hearing. At the sentencing hearing, held in July 2014, the district court imposed

a sentence of 180 days in jail with all but thirty days suspended. Oelmann was

placed on probation for two years. She was also ordered to pay restitution, a

fine, court-appointed attorney fees, court costs, and miscellaneous surcharges.

She now appeals asserting the sentencing court considered an improper factor in

imposing the sentence.
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      Our review is for correction of errors at law. State v. Thomas, 547 N.W.2d

223, 225 (Iowa 1996). The decision to impose a sentence within statutory limits

is “cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002). The sentence will not be upset on appeal “unless the

defendant demonstrates an abuse of trial court discretion or a defect in the

sentencing procedure.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

An abuse of discretion is found only when the sentencing court exercises its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable. Thomas, 547 N.W.2d at 225. The consideration by the trial court

of impermissible factors constitutes a defect in the sentencing procedure. Id.

      One impermissible factor is the consideration of another criminal offense

where the facts before the court do not show the defendant committed the

offense. See State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). It is a well-

established rule that a sentencing court may not rely upon additional, unproven,

and unprosecuted charges where the defendant has not admitted to the charges

or facts are not presented to show the defendant committed the offenses. See

State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).          When a sentence is

challenged on the basis of improperly considered, unproven criminal activity, “the

issue presented is simply one of the sufficiency of the record to establish the

matters relied on.   There is no general prohibition against considering other

criminal activities by a defendant as factors that bear on the sentence to be

imposed.” Longo, 608 N.W.2d at 474. However, if a court uses any improper

consideration in determining a sentence, resentencing is required. Grandberry,

619 N.W.2d at 401. This is true even if the improper factors are a “secondary
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consideration.” Id. We are not free to “speculate about the weight the trial court

mentally assigned to [the improper factors].” State v. Messer, 306 N.W.2d 731,

733 (Iowa 1981).

      At the sentencing hearing, the court asked about Oelmann’s criminal

history. The prosecutor informed the court “there’s a second degree theft out of

Franklin County which was sentenced in February of this year.”         Oelmann’s

counsel agreed that was correct and agreed Oelmann’s five-year prison

sentence on that conviction had been suspended.          It appears that offense

occurred in June 2013. Prior to pronouncing sentence, the court explained the

factors it considered in fashioning a sentence:

              Ms. Oelmann, you are hereby adjudicated guilty of the crime
      of Theft in the Third Degree, an aggravated misdemeanor, in
      violation of Iowa Code Sections 714.1(6) and 714.2(3).
              In terms of a sentence, I believe the sentence I am to
      impose here today provides for your rehabilitation and protection of
      the community. To the extent these details have been made known
      to me, I have taken into account your age, your lack of
      employment—or I guess your employment circumstances, which is
      some employment because you are making some earnings from
      your babysitting job for your cousin, your family circumstances,
      your criminal history, including the fact that you had already been
      charged with theft in the second degree and ultimately convicted of
      that theft in the second degree and ultimately convicted of that
      offense when you committed the crime that brings you here today.

Defense counsel objected, “I believe we determined that she was convicted

after.” The court responded, “She was convicted after. She was charged, the

Trial Information was filed July 29. . . . Complaint filed July 15. Offense date

here is September 2nd.” The court went on to state, “My point being that you

knew that you had—were in trouble for the prior crime when you committed this

one so you knew those charges were pending when this one was committed.”
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       On appeal Oelmann argues,

       The court relied on the misapprehension that she had already been
       convicted of theft in the second degree in Franklin County when
       she committed the theft charge in this case. The court’s mistaken
       belief is akin to an improper factor because it is not based on the
       facts admitted and proven in the record.

We disagree.

       In sentencing Oelmann, the court did not rely on a misunderstanding

about the timing of Oelmann’s Franklin County theft conviction.          After an

exchange with defense counsel, the court corrected its original statement. The

record is clear the court was well aware Oelmann’s Franklin County theft charge

was only pending when Oelmann committed the theft offense in Wright County,

and that she was later convicted on the Franklin County charge. Despite the

clarification made by counsel and correction made by the court prior to

pronouncing sentence, Oelmann asserts that “even though the error was brought

to the court’s attention, the record shows that the court still took this

impermissible consideration into account” and that “the court nevertheless relied

on the misapprehension that she’s been convicted of the theft in Franklin County

before committing the present theft in Wright County.” No such showing is made

in the record.

       Oelmann further argues that although the court corrected itself, “this does

little to dispel the notion that [the] court still had the previous improper

consideration in mind” because “the court never expressly disavowed reliance on

the impermissible factor.” A disavowal was unnecessary. The court’s correction

was unequivocal: “My point being that you knew that you had—were in trouble

for the prior crime when you committed this one so you knew those charges were
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pending when this one was committed.” The court merely considered the fact

that Oelmann was already in legal trouble for the Franklin County crime when

she committed another crime in Wright County, which was true. It was admitted

Oelmann committed the crime of theft in Franklin County in late June 2013, a

crime to which she pled guilty.

      We conclude the district court did not consider any impermissible factors

in imposing Oelmann’s sentence. We therefore affirm.

      AFFIRMED.
