                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0990
                               Filed April 27, 2016


DAVID BAUGH,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Franklin County, James M. Drew,

Judge.



      David Baugh appeals the district court’s denial of his amended application

for postconviction relief. AFFIRMED.




      Dylan J. Thomas, Mason City, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       David Baugh has appealed the district court’s denial of his amended

application for postconviction relief. He claims the sentencing court improperly

relied on portions of the trial information and minutes of testimony relating to

dismissed charges, and therefore (1) trial counsel was ineffective in failing to

object and (2) appellate counsel was ineffective in failing to argue the

ineffectiveness of trial counsel. On our review, we affirm.

       Baugh was charged with sex crimes in a twelve-count trial information.

Pursuant to a plea agreement, he pled guilty to three counts. During his plea

colloquy, Baugh admitted that on three separate occasions between 2006 and

2012 he committed three separate sex acts with the victim and agreed the court

could rely on the minutes of testimony for a further factual basis.           At the

sentencing hearing, the court and the parties agreed the plea applied to offenses

that occurred after July 1, 2009.

       The sentencing court explained the reasons for its decision:

             I have considered whether these terms should run
       concurrently or consecutively, and there are factors that w[eigh] in
       both directions. Because of the ongoing nature with which you
       victimized this child and the repeated nature of it and because it
       was a child who could not protect herself, I am ordering that
       Counts I and II be served consecutively. Because you have no
       criminal history, because there are mandatory minimums to serve
       in regard to these counts, and because you’ve acknowledged the
       trauma that you imposed on the victim, your family, and friends,
       Count III is to run concurrently with Counts I and II.

       In denying Baugh’s application for postconviction relief, the district court

reasoned:
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             The sentencing judge could properly consider the fact that
      the defendant admitted to three separate and distinct offenses
      occurring during a period commencing July 1, 2009, and ending
      sometime in 2012, a period of approximately three years. This was
      not a case in which the offenses were confined to a relatively short
      period of time. Thus, the offenses could fairly be described as
      “ongoing.” Furthermore, sex abuse on three separate and distinct
      occasions against the same victim can accurately be described as
      “repeated” offenses. Therefore, the record does not support the
      applicant’s claim that the trial judge considered inappropriate
      sentencing factors. Accordingly, trial counsel was under no
      obligation to object at the sentencing hearing and appellate counsel
      was under no obligation to pursue the matter further. Thus, neither
      committed a breach of an essential duty of representation and there
      is no basis for granting relief.

      In this appeal, Baugh argues the sentencing court’s reference to

“ongoing” and “repeated” offenses is evidence the court considered allegations

contained in the minutes of testimony concerning charges that were dismissed

and the postconviction court erred when it concluded otherwise.

      To overcome the strong presumption in favor of a district court’s

sentencing decision, “a defendant must affirmatively show that the district court

relied on improper evidence such as unproven offenses.” State v. Jose, 636

N.W.2d 38, 41 (Iowa 2001). The postconviction court properly considered the

facts contained in the minutes of evidence and found those facts supported the

decision of the sentencing court. Baugh’s speculations that the sentencing court

improperly relied on contents of the minutes that referenced dismissed charges

rise no higher than mere suspicions and do not constitute an affirmative showing

that the district court relied on improper evidence. See State v. Formaro, 638

N.W.2d 720, 725 (Iowa 2002) (“We will not draw an inference of improper

sentencing considerations which are not apparent from the record.”).
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Accordingly, neither trial counsel nor appellate counsel were ineffective in failing

to challenge the sentencing court’s decision.

       Pursuant to Iowa Court Rule 21.26(1)(d) and (e), we affirm.

       AFFIRMED.
