                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0474
                           Filed November 12, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH HOWARD VAN HECKE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.




      Joseph Van Hecke appeals the sentence imposed following his guilty

plea. AFFIRMED.




      Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.




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

       Joseph Van Hecke appeals the sentence imposed following his guilty plea

to assault causing injury, asserting the court abused its discretion in numerous

respects. We affirm.

       I. Background Facts and Proceedings.

       At Van Hecke’s sentencing hearing, his attorney stated:

              We are here today because of a true family tragedy. What
       should have been a day of joyous celebration recognizing the
       marriage renewal of wedding vows of Mr. Van Hecke and his wife
       ended up with his wife’s brother, his brother-in-law, deceased and
       Mr. Van Hecke now before the court after . . . [his brother-in-law’s]
       death.

       More specifically, in 2013, and as later amended, the State charged Van

Hecke by trial information as a habitual offender with three criminal

counts: (1) involuntary manslaughter, in violation        of Iowa Code section

707.5(1)(a) (2013); (2) assault causing serious injury, in violation of section

708.2(4); and disorderly conduct of fighting in a public place, in violation of

section 723.4(1). The minutes of testimony filed therewith alleged witnesses

would testify that on June 13, 2013, Van Hecke punched his brother-in-law in the

face, causing his brother-in-law to fall onto the floor and to strike his head on the

floor. Van Hecke’s brother-in-law died as a result, and the manner of death was

determined to be homicide.        Van Hecke subsequently filed notice that he

intended to rely upon the defense of justification in defense of self or another.

       A jury trial was held in May 2014. After hearing all of the evidence and

deliberation, the jury informed the court it was unable to reach verdicts on all
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three counts. The court therefore declared a mistrial, and it ordered the matter

be rescheduled for further proceedings.

       Thereafter, Van Hecke pled guilty pursuant to a plea agreement. The

State agreed to dismiss counts 1 and 3 in exchange for Van Hecke’s guilty plea

to the lesser offense of count 2, assault causing injury, in violation of section

708.2(2). The State also agreed to recommend at sentencing that Van Hecke

serve a term of incarceration of 180 days in jail, pay a fine of $315, reimburse the

crime victim fund, and pay restitution to the victim’s family. The plea agreement

signed by Van Hecke agreed that he was “admitting that there is a factual basis

for the charge, and admitting that at the time and place charged in the trial

information I punched [the victim] in the face and that the punch caused bodily

injury to [the victim’s] face.” Van Hecke also filed a written statement advising he

consented to waive his right to an in-court plea colloquy and that his attorney

could appear and enter his guilty plea to the assault charge. The statement

further acknowledged Van Hecke “read the Minutes of Testimony which are

substantively correct as to the fact that [he] punched [the victim], and [he]

admit[ted] that there is a factual basis for the charge against [him].” The court

accepted Van Hecke’s guilty plea and set the matter for sentencing.

       At the sentencing hearing, the State recommended Van Hecke be

incarcerated for 180 days, among other things, as it had agreed in the plea

agreement. It explained its reasons for seeking incarceration:

       Obviously based on the seriousness of this offense, here we are
       dealing—your Honor, was involved in the trial so you certainly know
       this case but the actions of this defendant caused the death of
       someone and 180 measly days in the Scott County Jail is certainly
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      warranted when we are dealing with the death of someone caused
      by the defendant’s actions.
               In addition the defendant does have a criminal history, the
      trial information was filed with a habitual offender based on prior
      criminal convictions and the State certainly feels like a period of
      180 days in the Scott County Jail is warranted.

      Van Hecke submitted to the court the statement of Van Hecke’s wife and

asked the court to consider that statement “in support or in mitigation of any

sentence that the court [was] contemplating.” Additionally, Van Hecke pointed

out that his prior criminal record—involving non-violent crimes—was dated. One

conviction was over twenty-five years old and the other almost fifteen years old.

He also stated since those convictions, he had

      been a productive member of the community. He’s involved in
      business, he’s involved in many charitable undertakings . . . . The
      people that you see in the courtroom today speak to Mr. Van
      Hecke’s community involvement and the positive influence that he’s
      had on multiple lives within the community.
              ....
              I submit that the court needs to consider what will be
      accomplished with whatever sentencing options the court ultimately
      decides to impose . . . . [M]ost people who plead guilty to an
      assault with bodily injury charge in this community receive
      suspended sentences, that is what Mr. Van Hecke has pled guilty
      to, assault resulting in bodily injury. He did not plead guilty to
      causing the death of [his brother-in-law. His brother-in-law] died
      that night following the assault to which Mr. Van Hecke pled guilty
      but I think it’s appropriate for the court to draw a distinction there
      between the defendant’s actions and [his brother-in-law’s] death.
              ....
              Mr. Van Hecke has stipulated in connection with the plea
      agreement to a restitution amount of $150,000 . . . . His business is
      reaching its peak season . . . very shortly and his involvement in his
      business . . . can lead to the generation of funds hopefully to fully
      satisfy that restitution obligation well before the five years called for
      in the plea agreement.
              I would submit to the court that the best sentence, one that
      offers the best opportunity for rehabilitation, the best opportunity for
      the healing of the family is to suspend the sentence of incarceration
      called for in the plea agreement, impose the mandatory minimum
      fine and allow Mr. Van Hecke to devote his life to the good works
                                          5


       that he has devoted his life to over the past [fourteen or fifteen]
       years as well as to the restitution obligation which he’s undertaken
       in connection with [his brother-in-law’s] death.

       Van Hecke personally addressed some members of the victim’s family.

Van Hecke told his wife that he knew her brother loved her “and I took that away

from you and I’ve said it before but I want to say it again, I am sorry. I’m sorry

that you will never get to see him again.” To the victim’s son, Van Hecke stated,

“I took away your best friend and your dad, I’m sorry.” To the victim’s other

children, Van Hecke apologized and stated, “I did not mean to take your dad

away.” Finally, Van Hecke addressed the court, stating: “I didn’t mean for it to

happen, I didn’t mean to hit him, I am sorry. It was just reflexes.”

       The court sentenced Van Hecke to 180 days incarceration in jail. The

court explained:

       [I]t’s my duty under the law to review what’s available to me in
       terms of community resources and determine an appropriate
       rehabilitative plan for you but I must consider that the public interest
       must be protected and in this case the public interest to be
       protected is the deterrence of violent acts and in looking at
       sentencing I consider the seriousness of the crime and the effect
       that the crime has upon members of the community, your
       willingness to accept change and treatment and what’s available to
       me in the community to assist me in that process. I look at the
       least restrictive alternatives first and then proceed to the more
       restrictive alternatives.
               In this case, you do have a prior criminal history, however,
       as your counsel pointed out most of the history is quite old and I do
       not really give it much weight in this case due to the ages of the
       convictions and they were not violent matters based on my
       understanding of them but they are there but I am not giving them
       great weight because they are quite old and it does seem like since
       then you have directed your skills to legal businesses and at least
       for the past number of years from the information I have in front of
       me you’ve been a law abiding citizen recently and a businessman.
               But turning to the crime that you have admitted committing,
       assault causing bodily injury, that brings us here today for
       sentencing, the bottom line is that you admitted that you assaulted
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       [your brother-in-law] without justification. We all know and I, of
       course, sat through the trial, the jury was unable to reach a
       determination and the State and the defense reached a plea
       agreement, a compromise, which I approved.
               However, of course, this sentencing isn’t an occasion for
       retrying the case, I’m just pointing out that you did in fact plead
       guilty to an assault resulting in bodily injury and we know from the
       testimony that, in fact, your assault on [the victim] did lead to his
       death.
               I heard the evidence before the court at an earlier time, I
       don’t think it’s necessary for me to rehash any of that but the
       bottom line is that you pled guilty to an act, an assault causing
       bodily injury, and a man . . . is dead because of your act.
               As a judge, one of my roles is to protect society and
       deterrence both general and specific is a legitimate worthy goal of
       sentencing. I think sentencing you to a term of incarceration
       pursuant to the plea agreement serves the goal of deterrence of
       both you and for others in the community. Frankly, you’re a middle
       age businessman and you apparently were angry and you lashed
       out and you struck your brother-in-law and we simply cannot have
       in our society people who are old enough to know better, mature
       enough to know better punching somebody severely enough that
       they lose consciousness and fall back and die. That’s a very
       serious matter.
               I think incarceration is appropriate due to the nature of the
       offense, separation from the community and deterrence and so that
       would be the court’s decision. I’m not going to suspend the
       sentence.

       Van Hecke now appeals, contending the district court abused its discretion

in imposing of a term of incarceration. He asserts the court relied on facts and

charges which were not proven or admitted, and the court failed to give

appropriate consideration to all relevant factors.

       II. Discussion.

       “The law is clear regarding consideration of impermissible sentencing

factors.   We will not vacate a sentence on appeal unless the defendant

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

procedure such as the trial court’s consideration of impermissible factors.” State
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v. Lovell, 857 N.W.2d 241, 242-43 (Iowa 2014) (citation and internal quotation

marks omitted).   A court abuses its discretion if it “acts on grounds clearly

untenable or to an extent clearly unreasonable.” State v. Hopkins, 860 N.W.2d

550, 553 (Iowa 2015).

      A. Reliance upon Unproven or Unadmitted Facts and Charges.

      Van Hecke first asserts the court relied upon facts and charges not proven

or admitted.   Specifically, he argues the court’s statements that Van Hecke

caused the victim’s death and that he struck the victim out of anger were

unproven facts that could not be considered. He also asserts the court relied on

the fact of the victim’s death as justification for the sentence of incarceration,

effectively considering the dismissed charges in imposing its sentence.       We

disagree.

      Sentencing courts 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. See State v.

Jose, 636 N.W.2d 38, 41 (Iowa 2001). In somewhat different phraseology, our

supreme court has stated 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.” State v. Formaro, 638 N.W.2d 720, 725

(Iowa 2002). The sentencing court can consider those facts contained in the

minutes of testimony “that are admitted to or otherwise established as true.”

Lovell, 857 N.W.2d at 243. “[W]hen a challenge is made to a criminal sentence

on the basis that the court improperly considered unproven criminal activity, the
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issue presented is simply one of the sufficiency of the record to establish the

matters relied on.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). We

will not infer the court considered an improper factor if it is not apparent from the

record. Formaro, 638 N.W.2d at 725. Our goal is not to second guess the

sentencing decision but to determine if the decision rests on an untenable or

improper ground. See Hopkins, 860 N.W.2d at 553-54.

       At Van Hecke’s jury trial, Van Hecke asserted the defense of justification

of defense of self or another, thereby admitting he caused the victim’s death.

While the court could not, in its sentencing decision, find that Van Hecke’s

actions were not justified as a reason to support its decision, the fact that Van

Hecke caused the victim’s death is apparent from the facts of the case and the

limited minutes relating to the actual assault.     Moreover, even without those

sources of fact, we agree with the State that Van Hecke’s statements to the

family and court at the sentencing hearing support the judge’s finding that Van

Hecke caused the victim’s death. That the court noted Van Hecke caused the

victim’s death does not mean it considered Van Hecke guilty of involuntary

manslaughter in imposing a term of incarceration.

       Additionally, the comment by the court that Van Hecke acted out of anger

is also supported by the minutes of testimony. The minutes stated one witness

would testify that Van Hecke “went over [to] the [the victim] and confronted him

about messing with his child.     [Van Hecke] then punched [the victim].”        The

minutes stated another witness would testify Van Hecke “told [the victim] to ‘back

up, . . . back the fuck up! You hurt my son seriously!’ . . . [Van Hecke] said ‘I’m

going to hit you!’ and hit [the victim] . . .” and the witness “grabbed [Van Hecke]
                                           9


and told him to calm down.” Similarly, the minutes support the court’s statement

that the victim lost consciousness, fell back, and died.        Most of the minutes

related to witnesses that observed Van Hecke hitting the victim describe what

happened immediately thereafter—the victim fell back, lost consciousness, and

died. Considering Van Hecke pled guilty to assault causing injury, the injury part

of the minutes is something the court could consider. We do not find these

considerations in its sentencing Van Hecke to a term of incarceration were

improper. Consequently, Van Hecke has failed to show the court abused its

discretion.

       B. Consideration of All Relevant Factors.

       Finally, Van Hecke contends that though the district court mentioned

mitigating factors in imposing sentence, it did not give them sufficient weight. If it

had, Van Hecke asserts, it would have suspended his sentence.                 Upon our

review, we disagree.

       The Iowa Supreme Court has stated “that the relevant factors when

imposing      sentence   include   the   nature   of   the   offense,   the   attending

circumstances, defendant’s age, character and propensities and chances of [the

defendant’s] reform.” Hopkins, 860 N.W.2d at 554 (citation and internal quotation

marks omitted). Additionally, the legislature has set forth factors including:

              a. The age of the defendant.
              b. The defendant’s prior record of convictions and prior
       record of deferments of judgment if any.
              c. The defendant’s employment circumstances.
              d. The defendant’s family circumstances.
              e. The defendant’s mental health and substance abuse
       history and treatment options available in the community and the
       correctional system.
              f. The nature of the offense committed.
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              g. Such other factors as are appropriate.

Iowa Code § 907.5(1). Furthermore:

              When considering whether a court abuses its discretion by
       imposing a sentence of incarceration, we recognize the nature of
       the offense alone is not determinative. On the other hand, the
       seriousness and gravity of the offense is an important factor. In the
       end, a court makes each sentencing decision on an individual basis
       and seeks to fit the particular person affected.

Hopkins, 860 N.W.2d at 555 (internal citations omitted).

       Overall, we cannot conclude the district court abused its discretion at

sentencing. The court’s colloquy establishes it considered the relevant factors in

its sentencing decision. The reasons stated by the court for imposing a term of

incarceration were within the statutory limits, and the court set forth its reasons

for imposing the term of incarceration.      Perhaps another court would have

imposed a different sentence, but this does not make the court’s sentence

unreasonable or untenable. We therefore conclude Van Hecke failed to establish

the court did not consider all of the relevant factors in deciding to impose a term

of incarceration.

       III. Conclusion.

       For the foregoing reasons, we affirm the district court’s sentence imposing

a term of incarceration following Van Hecke’s guilty plea.

       AFFIRMED.
