                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1139
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANDREW ROBERT SHADOW,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Bremer County, Peter B. Newell,

District Associate Judge.



      Andrew Shadow challenges his sentence following his conviction for

operating while intoxicated, second offense. SENTENCE VACATED AND CASE

REMANDED FOR RESENTENCING.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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DOYLE, Presiding Judge.

       Andrew Shadow pled guilty to operating while intoxicated (OWI), second

offense, in violation of Iowa Code section 321J.2(1) and (2) (2016), an aggravated

misdemeanor. The district court sentenced Shadow to prison for an indeterminate

term, not to exceed two years, to be served in an OWI Prison Program. In this

appeal, Shadow challenges his sentence, contending the district court relied on

impermissible sentencing factors.

       We review sentencing decisions for correction of errors at law. See State

v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). A sentencing decision will not be

reversed absent a showing of an abuse of discretion or some defect in the

sentencing proceeding. See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

Reliance on an impermissible sentencing factor is a defect in the sentencing

proceeding. See id. One inappropriate matter the sentencing court may not

consider is an unproven or unprosecuted offense. See State v. Jose, 636 N.W.2d

38, 41 (Iowa 2001). Because of the strong presumption in favor of a district court’s

sentencing decision, a defendant must make an affirmative showing the

sentencing court relied on an unproven offense. See id. We will neither assume

nor infer the district court relied on an impermissible factor without clear evidence

in the record to the contrary. See Formaro, 638 N.W.2d. at 725.

       Shadow was charged with OWI, second offense, resulting from a February

2016 incident. He pled guilty to the offense, and his plea was accepted at a plea

hearing. Sentencing was set for July 11, 2017, and preparation of a presentence

investigation (PSI) report was ordered. Shadow was charged with driving while

barred, resulting from a December 2016 incident. He pled guilty to the offense at
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a July 11, 2017 plea hearing, and the court accepted his plea. Shadow’s OWI and

driving-while-barred sentencing hearing immediately followed. The court entered

separate judgments and sentences on each offense. Shadow filed notices of

appeal in both matters. On appeal, Shadow only challenges his OWI sentence—

specifically, the prison sentence and placement in an OWI Prison Program.

       During the sentencing portion of the hearing, the prosecutor related

Shadow’s criminal record to the court.        The prosecutor also stated: “Since

[Shadow] has been arrested for the charge of OWI-Second, [he] has been arrested

six times. The majority of them are traffic charges, but it shows a complete

disregard for the law.” In sentencing Shadow to prison and the OWI Prison

Program on the OWI charge, the court stated:

       I think based on your prior criminal history a prison sentence is
       merited. I think that as long as the Department of Correctional
       Services thinks that you can benefit from the treatment aspect of
       incarceration, it’s worth giving that a try to make sure that you don’t
       come back to court. I would also say that I am influenced in this
       decision by the ongoing criminal activity that you seem to be involved
       in; you’ve got a number of pending charges. I guess that’s not really
       a factor for the court to consider, um, but I would take into
       consideration this driving while barred that you committed after this
       matter was pending.

It is the sentencing court’s statement that it was “influenced in this decision by the

ongoing criminal activity that you seem to be involved in; you’ve got a number of

pending charges” that Shadow asserts are the impermissible factors considered

by the court. “It is a well-established rule that a sentencing court may not rely upon

additional, unproven, and unprosecuted charges unless the defendant admits to

the charges or there are facts presented to show the defendant committed the

offenses.” Formaro, 638 N.W.2d at 725. Shadow contends the court’s self-
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correction—“I guess that’s not really a factor for the court to consider”—was not

sufficient to remove the taint of referencing unproven charges. We agree.

          Although the sentencing court attempted to disclaim its reference to the

pending charges, we cannot speculate about the weight the sentencing court gave

to them.1 Since we cannot evaluate their influence, we must strike down the

sentence. State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014).2 We therefore vacate

Shadow’s OWI sentence and remand the case to the district court for resentencing

before a different judge consistent with this opinion. See id.

       SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.




1
  Although one of the pending charges reflected in the PSI was the driving-while-barred
offense—an offense to which Shadow had just pled guilty, the PSI lists several other
pending charges to which Shadow had not pled guilty.
2
  We note this case is unlike State v. Horst, No. 17-1171, 2018 WL 542638, at *2 (Iowa
Ct. App. Jan. 24, 2018) (“However, unlike the district court in Lovell, the district court here
never mistakenly indicated it considered the intoxication evidence.”), and State v.
Balderas, No. 16-0261, 2017 WL 2181198, at *4 (Iowa Ct. App. May 17, 2017) (“This is
not a case like Lovell, where the sentencing court initially cited an impermissible
sentencing factor before attempting to disclaim the reference later in the hearing.”).
