                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0230
                           Filed December 19, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER DAVID VOGEL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carol S. Egly, District

Associate Judge.



      Christopher Vogel appeals his sentence following his guilty plea to animal

abuse. SENTENCE VACATED IN PART AND REMANDED.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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DANILSON, Chief Judge.

      Christopher Vogel appeals from his sentence following his guilty plea to

animal abuse, in violation of Iowa Code section 717B.2 (2017), an aggravated

misdemeanor. Vogel contends the sentencing court abused its discretion by

considering improper factors in imposing his sentence and entered an illegal

sentence when it ordered him to pay court costs associated with dismissed

charges.   Because Vogel has not affirmatively shown the court considered

improper factors, we find no abuse of discretion. However, we vacate the portion

of the sentencing order imposing an obligation to pay the costs of dismissed

charges and remand for entry of a corrected sentencing order.

I. Background Facts and Proceedings.

      On September 27, 2017, Vogel was charged with animal abuse and criminal

mischief in the fourth degree in case number AGCR307687—both counts

stemming from the same incident.       On November 30, Vogel reached a plea

agreement with the State, which provided: (1) Vogel would plead guilty to animal

abuse; (2) a pre-sentence investigation (PSI) would be completed; (3) the parties

were free to argue for any allowable sentence; (4) Vogel would pay “[a]ll applicable

surcharges and costs, including any court-appointed attorney fees”; (5) “[t]he State

will dismiss count II [criminal mischief] of AGCR307687 and SMAC369966 upon

sentencing”; (6) restitution; and (7) any other conditions the court may impose.

The court accepted Vogel’s written guilty plea and ordered a PSI.

      On February 1, 2018, the court sentenced Vogel to prison for two years,

with credit for time served in jail awaiting trial, and suspended a $625 fine plus

surcharge. Of the sentencing considerations set out in Iowa Code section 907.5,
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the court found the following factors to be the most significant in determining

Vogel’s sentence: (1) the nature and circumstances of the crime; (2) the

defendant’s criminal history, and; (3) the defendant’s propensity for further criminal

acts.    The court also found “[i]ncapacitation [sic] is warranted based on

Defendant’s history and stated desire not to be on probation as well as the nature

of this crime.” The court ordered restitution to be determined at a later date,

entered a no-contact order, and ordered DNA profiling.

        The court also ordered:

              Pursuant to the plea agreement and upon the
        recommendation of the State, the following counts/cases are
        dismissed: COUNT II: CRIMINAL MISCHIEF IN THE FOURTH
        DEGREE; NTA0794542; SMAC369966. Pursuant to the plea
        agreement Defendant is ordered to pay court costs on these
        counts/cases and if restitution is due on any of these counts/cases,
        Defendant is ordered to pay such restitution.

        Vogel appeals.

II. Scope and Standard of Review.

        Our review of sentencing decisions is for the correction of errors at law.

State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). Because the challenged

sentence does not fall outside statutory limits, we review the court’s decision for

abuse of discretion. Id. Reversal for an abuse of discretion is warranted only if

the court’s discretion has been exercised “on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.” Id.

III. Discussion.

        Vogel contends the sentencing court abused its discretion because it

improperly considered portions of his criminal history that did not result in a

conviction or juvenile disposition.
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      “A district court may not consider an unproven or unprosecuted offense

when sentencing a defendant unless (1) the facts before the court show the

defendant committed the offense, or (2) the defendant admits it.” State v. Jose,

636 N.W.2d 38, 41 (Iowa 2001). “On our review, a district court’s sentencing

decision enjoys a strong presumption in its favor.”       Id.   “To overcome the

presumption, a defendant must affirmatively show that the district court relied on

improper evidence such as unproven offenses.” Id.

      Here, Vogel merely speculates the district court relied on unproven

offenses. Vogel has not affirmatively shown the district court relied on improper

evidence. The court did not abuse its discretion in sentencing Vogel.

      Vogel also contends his sentence is illegal because the sentence requires

him to pay court costs on the dismissed counts. The inclusion of court costs for

dismissed charges does not automatically render a sentence illegal. However,

where the plea agreement is silent regarding the payment of fees and costs, only

those fees and costs attributable to the charge on which a defendant is convicted

are recoverable under a restitution plan. State v. Brown, 905 N.W.2d 846, 857

(2018) (citing State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991)).

      Vogel contends the written guilty plea “contains no mention regarding

assessment of court costs on the dismissed charges.”            We agree.      We

acknowledge the written plea states the plea agreement includes “[a]ll applicable

surcharges and costs, including any court-appointed attorney fees.” However

when the plea bargain is silent as to costs, and a statute does not authorize the

assessment of costs to the defendant for a dismissed charge, it is error for the

district court to order the defendant to pay such costs. Petrie, 478 N.W.2d at 622.
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Here, there is no statute that authorizes payment, and we do not interpret the

language in the written plea as requiring payment to include the dismissed

charges. We reach this conclusion because there would be no surcharges on the

dismissed charges, and there is no clear reference to the dismissed charges. We

also note the plea agreement, at least pursuant to the written plea, did not

encompass the simple misdemeanor offense. Consequently, the district court

imposed an illegal sentence, and we sever the portion of the sentence imposing

the costs for the dismissed charges, including count II. See Bonilla v. State, 791

N.W.2d 697,702 (Iowa 2010) (permitting an invalid part of a sentence to be

severed and leave the valid portions intact).

       We remand to the district court for entry of a corrected sentencing order

consistent with this opinion.

       SENTENCE VACATED IN PART AND REMANDED.
