                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1071
                               Filed June 11, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AMANDA MARIE TAYLOR,
     Defendant-Appellant.
________________________________________________________________

        Appeal from the Iowa District Court for Scott County, Nancy S. Tabor

(plea) and Gary D. McKenrick (sentencing), Judges.



        A defendant appeals her sentence following her guilty plea to several

drug-related offenses.     AFFIRMED IN PART, CONSPIRACY CONVICTION

VACATED, AND CASE REMANDED FOR RESENTENCING.



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

        Thomas J. Miller, Attorney General, Tyler Buller, Assistant Attorney

General, Michael J. Walton, County Attorney, and Dion Trowers and Kelly G.

Cunningham, Assistant County Attorneys, for appellee.



        Considered by Vogel, P.J., and Doyle and Mullins, JJ. Tabor, J. takes no

part.
                                               2



MULLINS, J.

          Amanda Taylor appeals following her guilty pleas to the following

offenses: (1) the sale, transfer, furnishing, or receipt of a product used to

manufacture methamphetamine, in violation of Iowa Code sections 124B.9(1)

and 703.1 (2011), a class “C” felony; (2) sponsoring a gathering where controlled

substances are unlawfully used, in violation of sections 124.407 and 703.1; a

class “D” felony; (3) conspiracy to commit a non-forcible felony, in violation of

sections 706.1(a) or (b), 706.3, and 703.1, a class “D” felony; and (4) child

endangerment, in violation of sections 726.6(1)(a) and (g), 726.6(6), and 703.1, a

class “D” felony.1 On appeal Taylor claims the court imposed an illegal sentence

by failing to merge the conviction for conspiracy to commit a non-forcible felony

with the conviction for the sale, transfer, furnishing, or receipt of a product used

to manufacture methamphetamine. She asserts her attorney was ineffective in

not challenging the court’s use of improper victim impact statements. Finally, she

claims the court considered improper factors in sentencing her. For the reasons

stated, we affirm Taylor’s conviction in part, vacate Taylor’s conviction on the

conspiracy offense, and remand her case for resentencing.

I. Background Facts and Proceedings.

          Police discovered a methamphetamine lab at Taylor’s home, which she

shared with her boyfriend and her four children. She also used the home for a

state-licensed daycare. The State charged Taylor, along with her boyfriend, with

multiple counts. Taylor agreed to plead guilty to four of the counts. At the plea



1
    In exchange for her guilty plea, the State agreed to dismiss five other charges.
                                            3



hearing, Taylor supplied the factual basis to support each of her guilty pleas.

With   respect   to   furnishing    a     product    to   be      used   to   manufacture

methamphetamine, Taylor explained that she purchased pseudoephedrine so

her boyfriend could make methamphetamine. With respect to the sponsoring-a-

gathering count, Taylor admitted she knew her boyfriend was using

methamphetamine in her home and was having others over to use

methamphetamine.           On the conspiracy count Taylor admitted providing

pseudoephedrine       to     help   her     boyfriend     and      others     manufacture

methamphetamine and that she aided and abetted that activity. Finally, on the

child-endangerment count Taylor admitted she had two of her own children with

her at the time when methamphetamine was being manufactured in the house.

The court deferred acceptance of the plea agreement until the presentence

investigation was completed.

       At the sentencing hearing, Fawn, the mother of a four-year-old child who

attended   daycare     at     Taylor’s    home      and   later     tested    positive   for

methamphetamine, offered an oral and written statement to the court regarding

the impact the offenses committed by Taylor had on her and her child. There

was no objection to the testimony. The State recommended incarceration for

Taylor, referring to the impact the crime had on the children in the daycare and

the impact on the police department, which is investigating and cleaning up a

high volume of methamphetamine cases—“[T]he State feels compelled to ask for

incarceration. I guess the cost to society and what these children have gone

through, the fears that these parents are suffering is too great, and the State
                                        4



really believes that there really needs to be a very strong message sent.” The

State noted the sentence was about giving a face to the victimization the families

had suffered and that Taylor showed a “real callous disregard” for her own

children and the other children who were at the house.

      Defense counsel acknowledged the pain of Fawn and the other parents

that were at the sentencing hearing and asked the court for probation considering

the positives in Taylor’s life, her lack of a criminal record, and her cooperation

with the department of human services. Taylor stated on the record that she was

“sorry to Fawn, to the kids, to the parents, to my children, to my family for what

they have been through.” She acknowledged the risks to herself, her children,

and everyone else.          The presentence investigation report recommended

probation.    In addition, in the presentence investigation report, Taylor

acknowledged running an in-home daycare and noted the families of her daycare

children were affected by the crime because they had to seek a new daycare

provider on short notice.

      The court acknowledged it had reviewed the documents filed with the clerk

including some “victim statements” and a number of written statements on behalf

of Taylor. Included in what the court termed “victim statements” were letters

written by community members; some of Taylor’s family; friends, family, and co-

workers of Fawn; and the father to Taylor’s children. The statements in support

of the defense included Taylor’s family members, friends, and two of her children.

      In pronouncing the sentence of incarceration on each of the four counts, to

be served concurrently, the court stated:
                                        5



              The Court has reviewed the presentence investigation report
      as well as the other documents which the Court referenced earlier.
      I think, as recognized by both counsel for the State and counsel for
      the Defendant, the presentence investigation report sets forth
      information that argues favorably for a probationary sentence for
      the Defendant. The Defendant does not have any previous criminal
      involvement. She is relatively young. She’s been employed and is
      capable of sustained employment over significant periods of time
      as demonstrated by her history. She’s completed high school.
      She’s got family support. All of that argues strongly in favor of
      probation if not in favor of a deferred judgment.
              The critical issue for the Court concerns the issues raised by
      counsel for the State concerning the community impact of the
      offenses. Not only to the Defendant and her immediate family, but
      for those families that were directly impacted by the offenses. The
      Court has to consider specific deterrence, which is a sentence that
      would deter Ms. Taylor herself from further criminal activity as well
      as meet Ms. Taylor’s rehabilitative needs. And when considering
      those factors alone, the Court would not hesitate to grant probation
      and would give serious consideration to granting Ms. Taylor a
      deferred judgment. But the Court also has to consider the impact
      on the community and the concept of general deterrence and the
      message that is sent to the community at large about behavior such
      as lead to the criminal offenses which the Defendant has plead
      guilty to. And as indicated by counsel for the State, those factors
      argue strongly in favor of a sentence of incarceration.
              Had it been simply your own children, Ms. Taylor, the Court
      undoubtedly would lean toward a probationary sentence. This
      Court has trouble getting past the fact that you ignored the safety of
      the children whose parents entrusted you to care for them. There
      is simply no doubt about that. I’m somewhat concerned from my
      review of the presentence investigation report that you haven’t fully
      comprehended that breach of trust. You have indicated it today
      and I take that at face value, but I’m not sure that you totally
      internalize it. For all of those reasons, the Court concludes that a
      sentence of incarceration is appropriate.

      Taylor now appeals the sentence imposed.

II. Scope and Standard of Review.

      When a defendant claims a sentence is illegal based on the court’s failure

to merge two counts, our review is for correction of errors at law.       State v.

Lambert, 612 N.W.2d 810, 815 (Iowa 2000). We review ineffective-assistance
                                           6



claims de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Finally, we

review a trial court’s sentencing decision for correction of errors at law and will

only upset the decision on appeal if the defendant demonstrates the trial court

abused its discretion or if there was a defect in the sentencing procedure such as

the court’s consideration of impermissible factors.        State v. Grandberry, 619

N.W.2d 399, 401 (Iowa 2000).

III. Merger.

       Taylor first contends the court imposed an illegal sentence when it failed

to merge her conviction for the sale, transfer, furnishing, or receipt of a product

used to manufacture methamphetamine2 with her conviction for conspiracy to

commit a non-forcible felony.3 She claims under Iowa Code section 706.44 the

convictions and sentences should merge because the same factual basis in her

guilty plea was used to support both convictions: she supplied pseudoephedrine

to her boyfriend so that he could make methamphetamine. She claims because




2
    Iowa Code section 124B.9 provides, in part: “A person who sells, transfers, or
otherwise furnishes a precursor substance with knowledge or the intent that the recipient
will use the precursor substance to unlawfully manufacture a controlled substance
commits a class “C” felony.”
3
  Iowa Code 706.1(1)(a)-(b) provides:
               A person commits conspiracy with another if, with the intent to
        promote or facilitate the commission of a crime which is an aggravated
        misdemeanor or felony, the person does either of the following:
               a. Agrees with another that they or one or more of them will
        engage in conduct constituting the crime or an attempt or solicitation to
        commit the crime.
               b. Agrees to aid another in the planning or commission of the
        crime or of an attempt or solicitation to commit the crime.
4
   Iowa Code section 706.4 provides: “A conspiracy to commit a public offense is an
offense separate and distinct from any public offense which might be committed
pursuant to such conspiracy. A person may not be convicted and sentenced for both the
conspiracy and for the public offense.”
                                         7



the same factual basis supports both offenses, the convictions should merge and

she should be resentenced on only the substantive offense.

       The State maintains the two convictions do not merge in this case

because they are two separate offenses. The first count charged Taylor with

transferring pseudoephedrine with the knowledge it would be used to make

methamphetamine, whereas the conspiracy count charged Taylor with engaging

in conduct that promoted or facilitated the agreement to manufacture

methamphetamine. The State points to the minutes of testimony as supplying

information to support other acts Taylor did in the furtherance of the conspiracy

such as supplying Coleman fuel and cold-packs. The State cites to State v.

Finney, 834 N.W.2d 46, 62 (Iowa 2013), in support of its reliance on the minutes

of testimony to supply a factual basis to support its argument the two convictions

do not merge.

       We agree, under Finney, it is proper to resort to the minutes of testimony

when the challenge is to the factual basis to support a guilty plea. However, here

there is no question as to the validity of the guilty plea. Taylor supplied the facts

to support her guilty plea to both the conspiracy and the furnishing a precursor.

Taylor did not admit to the accuracy of the minutes of testimony, which included

a number of facts and allegations that were not part of the guilty plea record.

The only precursor she admitted to supplying was pseudoephedrine, which was

also the only thing she admitted to supplying in the furtherance of the conspiracy.

The question of whether two convictions merge under section 706.4 is an entirely

different issue than whether a factual basis supports a guilty plea under Finney,
                                         8



and thus, we reject the State’s attempt to use the unproven and unadmitted facts

contained in the minutes of testimony to support the conclusion the two

convictions should not merge. See State v. Walker, 610 N.W.2d 524, 526–27

(Iowa 2000) (holding the two offenses did not merge where there was an

independent factual basis to support each offense to which the defendant pled

guilty); see also State v. Dittmer, 653 N.W.2d 774, 777 (Iowa Ct. App. 2002)

(finding the conspiracy and the substantive offense did not merge because the

State explained, the district court accepted, and the defendant did not contest, at

the plea hearing, the two charges stemmed from different acts with different

people at different times); see generally State v. Turecek, 456 N.W.2d 219, 223

(Iowa 1990) (stating the test for whether a crime must be submitted as a lesser-

included offense entails the trial court determining “whether if the elements of the

greater offense are established, in the manner in which the State has sought to

prove those elements, then the elements of any lesser offense have also

necessarily been established” (emphasis added)).

       Because the same facts supplied by Taylor supported both the conviction

for furnishing a precursor to be used to manufacture methamphetamine and the

conviction for conspiracy to commit a non-forcible felony, to wit: manufacture

methamphetamine, the two convictions and sentences should merge. We vacate

Taylor’s conviction on the conspiracy charge and remand for resentencing.

IV. Guidance on Resentencing: Victim Impact Statements.

       Although we are remanding the case for resentencing due to our decision

on the merger claim, we will address Taylor’s two other claims on appeal to
                                           9



provide the district court with guidance upon resentencing so the same issues do

not arise again. Taylor claims her trial attorney was ineffective in failing to object

to the court’s use of improper victim impact statements at sentencing. Taylor

concedes that the statement submitted by her children’s father was a proper

victim impact statement because the children were considered victims under the

child-endangerment conviction. However, she asserts all the other statements,

including those submitted by Fawn; friends, family, and coworkers of Fawn;

general members of the community; and some of her own family were improper

because the people submitting the statements were not considered victims of

any of the crimes of which she was convicted. She also claims the court should

not have relied on these statements when imposing the sentence because they

contained improper factors.

       The State asserts the letters written to the court were not true victim

impact statements. The State claims the only true victim impact statement was

presented by Fawn, and this statement was properly considered as a victim

impact statement because Fawn was a victim by virtue of her four-year-old son’s

exposure to methamphetamine as a result of Taylor’s crime of providing

pseudoephedrine      to    her   boyfriend     so   that   he    could    manufacture

methamphetamine.5 The State claims as to the other letters, Taylor does not

identify any specific legal basis for excluding them from the court’s consideration.



5
  The State also claims Taylor cannot prove her counsel was ineffective in not objecting
to the letters because the rules of evidence do not apply at a sentencing hearing. See
Iowa R. Evid. 5.1101(c). It claims there is no reasonable probability that any such
objection would have changed the outcome of the sentencing proceeding. In addition,
the State also contends that even if there was an arguable basis for making an
                                           10



       In rendering a sentence, Iowa Code section 901.2 provides that the court

“must consider any information offered by the parties relevant to the question of

sentencing.” State v. Peters, 525 N.W.2d 854, 859 (Iowa 1994) (noting Iowa

Code section 901.2 provides, in part, “[T]he court shall receive from the state,

from the judicial district department of correctional services, and from the

defendant any information which may be offered which is relevant to the question

of sentencing”).    In addition “[t]he court may consider information from other

sources.”   Iowa Code § 901.2 (emphasis added).             Iowa Code section 901.5

provides the court is to receive and examine all pertinent information, including

the presentence investigation report and victim impact statements, if any, when

considering its sentencing options. See State v. Phillips, 561 N.W.2d 355, 359

(Iowa 1997) (finding a father’s oral testimony was properly considered by the

sentencing court under sections 901.2 and 901.5).

       Victims are permitted to submit statements to the court at the time of

sentencing. A victim is defined in Iowa Code section 915.10(3) as “a person who

has suffered physical, emotional, or financial harm as the result of a public

offense or a delinquent act, other than a simple misdemeanor, committed in this

state. The term also includes the immediate family members of a victim “who

died or was rendered incompetent as a result of the offense or who was under



objection, counsel exercised a tactical decision not to object because it wanted the court
to consider the many letters submitted by people on Taylor’s behalf.
        Because we are remanding the case for resentencing, we need not determine
whether defense counsel was ineffective, and therefore, we need not address these
assertions by the State. We address Taylor’s claims here only to provide the
resentencing court guidance on what evidence to consider on remand. But we do note
that under Iowa Code section 901.2, the court must consider information offered by
party, such as the letters defense counsel offered from Taylor’s family and friends.
                                          11



eighteen years of age at the time of the offense.” Iowa Code § 915.10(3). A

victim is permitted to submit a victim impact statement to the court indicating “the

physical, emotional, financial, or other effects of the offense upon the victim.” Id.

§ 915.10(4). The statement can be oral or written, live or recorded; it is not under

oath; and the victim is not subject to cross-examination. See id. §§ 915.10(4),

915.21.

       The only evidence offered by the State at sentencing in this case was the

testimony of Fawn. If Fawn’s four-year-old son is considered a victim—having

suffered physical, emotional, or financial harm from an offense committed by

Taylor—then Fawn, as his mother, is also considered a victim due to his minority

status. See id. § 915.10(3). Taylor contends the four-year-old is not a victim

because the only children that were identified in the guilty plea proceeding were

two of her own children, as they were the victims of the child endangerment

charge. Because she did not admit to endangering Fawn’s son, or any of the

other daycare children, she contends they do not qualify as victims. The State

maintains that the four-year-old is a victim, not of the child-endangerment

conviction, but of the furnishing-pseudoephedrine conviction and the conspiracy-

to-manufacture-methamphetamine conviction.6 The four-year-old tested positive

for methamphetamine indicating an exposure to the drug.             Because he was

exposed to the drug, the State claims the child is a victim, thereby making his

mother a victim as well.




6
 Pursuant to the discussion above, the conspiracy conviction merged into the furnishing-
a-precursor conviction.
                                        12



      As stated above a victim is someone who has suffered physical,

emotional, or financial harm as the result of a public offense. So the question

becomes, did the four-year-old suffer some type of harm due to his exposure to

the manufacturing of methamphetamine that was occurring in Taylor’s home and

did the harm result from an offense to which Taylor pled guilty. In her in-court

statement, Fawn indicated the doctors know very little about the long-term effects

of exposure to methamphetamine.            She referenced the fact her son was

complaining of headaches and staying up late, which she initially attributed to a

late nap. She stated, “[M]y son is still suffering from what you guys exposed him

to,” but she provided no medical or pharmaceutical evidence, diagnosis, or

prognosis   linking   her   observations    of   her   son   to   the   exposure   to

methamphetamine. Fawn’s written statement also does not shed any more light

on the harm her son suffered as a result of being exposed to methamphetamine,

though Fawn does discuss the psychological impact she felt “not knowing the

long-term effects of meth exposure.”

      It is not enough for the court to presume harm to a person who claims to

be a victim. There must be some evidence the victim was harmed in some way.

See id § 915.10(3). The current record is unclear regarding the extent to which

the child suffered harm. On remand, we leave it to the district court to determine

whether sufficient evidence was offered to establish the child, and his mother by

extension, was harmed.      In addition, in making this determination the court

should also identify which public offense resulted in the harm to the child and his

mother. Id. If the child is not considered a victim, the court should not consider
                                       13



the victim impact statement of Fawn at resentencing. See State v. Tesch, 704

N.W.2d 440, 450-53 (Iowa 2005).

      With respect to the letters in the court file, neither party offered those to

the court during the sentencing hearing, so the court was not obligated to

consider them in sentencing. See Iowa Code § 901.2; Peters, 525 N.W.2d at

859. The letters were mailed to the clerk of court and included in the court file.

The letters were from Fawn’s friends, family, and coworkers; general members of

the community; and some of Taylor’s family. None of these individuals qualify as

victims under section 915.10(3). However, the letters do qualify as information

“from other sources” that the court may consider in sentencing so long as the

letters did not contain impermissible factors. Iowa Code § 901.2; see also id.

§ 901.5.

      The statements generally referenced outrage at the probation sentence for

Taylor’s boyfriend, reminded the court that Taylor put the lives of the daycare

children and her own children in danger by allowing the methamphetamine to be

manufactured in her home, reiterated that the future health consequences for the

children are unknown, asserted Taylor had shown no remorse or guilt for her

actions, stated that Taylor’s bedroom had caught on fire twice due to the

methamphetamine manufacturing and that a child’s playpen was located in the

same room, claimed Taylor used methamphetamine while in the care of the

children, and mentioned Taylor’s child was terrified when she had to exit the

home in the middle of the night with her hands up and police guns drawn.
                                       14



      We note some of the letters reference conduct Taylor allegedly engaged

in that was not part of the offenses to which she pled guilty. We caution that a

sentencing court is not permitted to consider “additional, unproven, and

unprosecuted charges.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).

The court should not look to the minutes of testimony to provide facts when

considering what sentence should be imposed, unless the facts in the minutes

are admitted to or otherwise established as true. See State v. Gonzalez, 582

N.W.2d 515, 517 (Iowa 1998) (refusing the State’s request to refer to the minutes

of testimony to provide facts the sentencing court relied upon and considered).

“Where portions of the minutes are not necessary to establish a factual basis for

a plea, they are deemed denied by the defendant and are otherwise unproved

and a sentencing court cannot consider or rely on them.” Id.

      The sentencing court mentioned it had reviewed the “victim statements”

filed with the clerk, and did not specifically disclaim consideration of the

allegations of unproven charges. See State v. Matheson, 684 N.W.2d 243, 244–

45 (Iowa 2004) (“As a minimum the court should make it clear the offending

evidence was not a consideration.”). The court should take care on remand to

specifically disclaim any information it believes consists of an improper

sentencing consideration.
                                       15



      Because we find the conspiracy conviction merged into the furnishing a

precursor conviction, we vacate the conspiracy conviction, affirm the other

convictions, and remand this case for resentencing.

      AFFIRMED IN PART, CONSPIRACY CONVICTION VACATED, AND

CASE REMANDED FOR RESENTENCING.
