                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0654
                            Filed December 10, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH ALLEN ERLINGER,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Patrick R. Grady

(guilty plea) and Mitchell E. Turner (sentencing), Judges.



      A defendant appeals his prison sentence, alleging the sentencing court

relied on unproven offenses. JUDGMENT AFFIRMED, SENTENCE VACATED,

AND REMANDED FOR RESENTENCING.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Nicholas L. Scott, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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TABOR, J.

       At his sentencing hearing, Joseph Erlinger admitted he had a “bad night”

on November 2, 2013. That night, he and his wife drove from their home in

Illinois to a concert in Iowa. He drank heavily and then strangled his wife until

she lost consciousness at a Cedar Rapids tavern. When a police officer arrived

at the tavern to investigate the domestic violence, Erlinger assaulted and

threatened to kill the officer.     At his plea hearing, Erlinger said he did not

remember much from that night due to his intoxication, but had no reason to

question the minutes of evidence.

       His conduct that night prompted the State to file a five-count trial

information, alleging: (1) domestic abuse assault causing bodily injury

(strangulation), a class “D” felony, in violation of Iowa Code section 708.2A(5)

(2013); (2) first-degree harassment, an aggravated misdemeanor, in violation of

sections 708.7(1) and 708.7(2); (3) assault on a peace officer, a serious

misdemeanor, in violation of sections 708.1 and 708.3A(4); (4) interference with

official acts, in violation of section 719.1(1); and (5) public intoxication, in violation

of section 123.46. He entered a plea of guilty to the first three counts and the

State dismissed the fourth and fifth count.

       At the sentencing hearing on March 28, 2014, Erlinger requested a

suspended sentence, while the State advocated for concurrent prison terms.

The district court sentenced him to concurrent prison sentences, not to exceed

five years.    Erlinger now appeals, alleging the sentencing court considered

unproven and unprosecuted offenses.
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       We review the sentencing proceeding for correction of errors at law. State

v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). We will not upset a sentence

on appellate review unless the defendant demonstrates an abuse of trial court

discretion or a defect in the procedure, such as the district court’s consideration

of impermissible factors.     Id.   We do not assume a judge relied on an

impermissible factor without clear evidence in the record to the contrary. See

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

       In giving its otherwise well thought-out and thorough reasoning for the

sentence imposed, the district court told Erlinger: “I don’t doubt your earnestness

when you tell me that you’re trying to better yourself, but I’ve read through the

Presentence Investigation. . . . You have a history of domestic battery charges.

That suggests you haven’t gotten it to this point.”       Later in the sentencing

proceedings, the district court said “the reasons for my sentence are the facts

and circumstances as set out in the Presentence Investigation.”

       Erlinger seizes on the district court’s reference to his “history of domestic

battery charges.” The presentence investigation (PSI) report showed Erlinger

had one previous domestic battery conviction in Illinois, as well as two other

charges of domestic battery in Illinois that had been dismissed.           Erlinger

contends the court improperly considered his unproven offenses along with his

prior conviction. The State argues the district court’s plural reference “may well

have been to the previous domestic battery conviction from Illinois and the

current conviction.”
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       “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.”   Id. at 725 (citing State v. Black, 324 N.W.2d 313, 315-16 (Iowa

1982)). If the court considers an unproven charge, a remand is necessary for

resentencing. Id.

       We agree with Erlinger that the court’s reference to “domestic battery

charges” is problematic and strongly suggests the court considered not just his

prior conviction, but the instances where he was charged but not convicted. See

State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct. App. 1991) (“The court may not

consider those crimes for which the defendant has been charged but was not

convicted.”). The court’s supposition from those charges that the defendant had

not “gotten it to this point” tends to rule out the State’s interpretation that the court

was lumping the prior Illinois conviction together with current Iowa offense.

       The court’s consideration of the unproven offenses tainted the sentencing

proceedings.     State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999) (noting

appellant courts may not speculate about the weight a sentencing court assigned

to an improper consideration”). Accordingly, we must vacate the sentence and

remand for resentencing.

       Erlinger raises an additional concern about court costs, alleging he was

assessed court costs associated with all five counts in the trial information, rather

than the three counts for which he was convicted. The State agrees Erlinger

cannot be assessed court costs on the charges dismissed as part of the plea
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agreement. See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (“[O]nly such

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

convicted should be recoverable under a restitution plan.”); see also Iowa Code

§§ 815.13, 910.2. In the order following resentencing, the court should make

clear Erlinger is only responsible for court costs associated with the charges for

which he was convicted.

      JUDGMENT AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
