                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1191 / 12-0982
                             Filed February 5, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

COLE JON WRAGE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Defendant appeals his sentence. AFFIRMED.




       Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Mary Triick, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant

County Attorney, for appellee.




       Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
                                         2


DANILSON, C.J.

      Cole Wrage appeals his sentence imposed by the district court.             He

contends the district court abused its discretion by failing to recite adequate

reasons and relying on improper factors in imposing sentence. He also contends

counsel provided ineffective assistance at sentencing. Although the district court

used strong language at sentencing, it was sufficiently supported by the record

and did not constitute reliance upon an unproven claim or crime. We also find

the district court properly exercised its discretion and gave sufficient reasons for

the sentence. Finally, we conclude counsel was not ineffective. We affirm.

I. Backgrounds Facts and Proceedings.

      On April 27, 2011, Wrage was pulled over by officers. During the course

of the stop, the officers searched the vehicle and found nine grams of marijuana

as well as other drug paraphernalia. Wrage was arrested and charged with

possession of a controlled substance (marijuana), third offense.

      On August 29, 2011, officers executed a search of a residence where

Wrage was sleeping. Officers found a methamphetamine lab, as well as items

commonly used in the manufacturing of the drug. The owner of the residence

admitted to the officers that he had allowed Wrage to manufacture

methamphetamine in the residence in the past.          Wrage was charged with

manufacture of a controlled substance and/or conspiracy to manufacture a

controlled substance (methamphetamine); possession of ephedrine and/or

pseudoephedrine with the intent to manufacture a controlled substance;

possession of lithium with the intent to manufacture a controlled substance; and

possession of ether with the intent to manufacture a controlled substance.
                                         3


      Wrage pled guilty to each of the five charges. As recommended by the

State, he was sentenced for a term of incarceration not to exceed thirty years,

with a one-third mandatory minimum before the opportunity of parole. Wrage

appeals.

II. Standard of Review.

      Our review is for correction of errors at law. State v. Thomas, 547 N.W.2d

223, 225 (Iowa 1996). The decision to impose a sentence within statutory limits

is “cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002). The sentence will not be upset on appeal “unless the

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

sentencing procedure.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

An abuse of discretion is found only when the sentencing court exercises its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable. Thomas, 547 N.W.2d at 225. The consideration by the trial court

of impermissible factors constitutes a defect in the sentencing procedure. Id. If a

court considers unprosecuted and unproven charges, we remand for

resentencing. Formaro, 638 N.W.2d at 725.

III. Discussion.

      A. Improper Sentencing Factor.

      We first address Wrage’s claim the sentencing court erred by considering

an unproven claim when determining the appropriate sentence. In making his

assertion, Wrage relies specifically on the court’s statement:

             Mr. Wrage, were it so simple as to be concerned with you
      only destroying your own life, that would be one thing. But you’re
      doing far beyond that. You’re putting this poison into the stream of
                                         4


       commerce to destroy not just yourself, but anyone else that it
       comes into contact with. You’ve got an abysmal drug record and
       you have been through this treatment program before and here you
       are yet once more. So I don’t accept the notion that you have
       learned anything or that you intend to change.              You have
       demonstrated time and time and time again that you’re committed
       to a life of misery, a life of drug abuse and a life of inflicting your
       misery on other people. And so you richly deserve what has been
       recommended here today and that is what I am going to go with.
               ....
               The point, Mr Wrage, is simply this, you have chosen the life
       that you want to live, you have chosen to want to inflict harm not
       just upon yourself but upon others as well. So if you won’t stop on
       your own, then we have no choice but to stop you this way.

       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. 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.” Formaro, 638 N.W.2d at 725 (emphasis

added).

       The State argues the court made a “reasonable inference” Wrage

intended to manufacture the controlled substance for the use of others, rather

than for merely personal use. We agree.

       When a sentence is challenged on the basis of improperly considered,

unproven criminal activity, “the issue presented is simply one of the sufficiency of

the record to establish the matters relied on. There is no general prohibition

against considering other criminal activities by a defendant as factors that bear
                                            5

on the sentence to be imposed.” State v. Longo, 608 N.W.2d 471, 474 (Iowa

2000). However, if a court uses any improper consideration in determining a

sentence, resentencing is required. Grandberry, 619 N.W.2d at 401. This is true

even if the improper factors are a “secondary consideration.” Id. We are not free

to “speculate about the weight the trial court mentally assigned to [the improper

factors].” State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981). Consideration of

information obtained from outside the record is a defect in the sentencing

procedures that requires a remand for resentencing. Id.

       We acknowledge that Wrage was not charged with an intent to deliver or

delivery of a controlled substance, and he never admitted delivery to the extent of

the transcript of the proceedings provided to us.1 Nonetheless, the presentence

investigation report gave the defendant’s version of the crimes and stated in part,

“The defendant reports that on August 27, some guys picked him up to go to their

trailer. He had a bottle with him that contained some lithium in his backpack, a

HCL generator that he admits were all belonging to him.” One of the crimes to

which Wrage pled guilty was manufacture of a controlled substance and/or

conspiracy to manufacture a controlled substance.            The controlled substance

alleged to be involved was methamphetamine. The official version of the facts

also set forth in the presentence investigation stated that another individual

“admitted to providing pseudoephedrine for the purpose of manufacturing

methamphetamine and allowing [Wrage] to use his residence to do so.” Defense




1
  The better practice is to provide the transcript of the sentencing proceedings as well as
the guilty plea proceedings. Here, we were only provided the sentencing transcript.
                                         6


counsel was asked during the sentencing hearing if there were any additions or

corrections to the presentence investigation report and counsel indicated, “no.”

       Although we acknowledge the district court’s use of the phrase, “putting

this poison into stream of commerce” might suggest Wrage was involved in the

unproven crime of delivery of methamphetamine, we think there is sufficient

evidence in the record that Wrage was asked to manufacture methamphetamine

for other individuals, and the manufacture of the controlled substance was not

just for his use but for the use of his co-conspirators as well. Although the line

was nearly crossed, we think the import of the district court’s statement relates to

the fact that Wrage had others involved in the criminal activity and he was not

just affecting his own life by the manufacture of methamphetamine. Although the

district court used strong language, the facts before the court dissuade us that

the court relied upon unproven criminal activity. Moreover, judges need not only

speak in “general unspecific phrases in stating their reasons for the sentence.”

See State v. Bragg, 388 N.W.2d 187, 191 (Iowa 1986) (concluding “strong and

specific” language was not sufficient to constitute an abuse of discretion).2


2
 In Bragg, 388 N.W.2d at 194, the special concurrence authored by Judge Allen
Donielson elaborated:
               If appellate courts constantly reverse and remand sentences
       which contain proper reasons for sentencing which also go on to state
       other reasons and observations, then sentencing will turn into a ritualistic
       proceeding. The record on appeal from such proceedings will be so
       sanitized that we appellate judges may very often be wondering if the
       sterile record before us contains any of the true reason(s) for the
       sentencing decision. One can well imagine a small typewritten paragraph
       included in the bench book that gives the magic words sufficient to avoid
       reversal on appeal, but sanitized to contain nothing of real feeling and
       basic substance as to what happened and why.
               Rather than forcing trial courts to turn sentencing into a formalistic
       and hypertechnical proceeding, I believe that if the sentencing judge
       states proper reasons based on appropriate foundations in the record,
                                           7

Accordingly, we conclude there was no defect in the sentencing procedure. See

Grandberry, 619 N.W.2d at 401.

      B. Adequate Sentencing Reasons.

      Wrage contends the district also failed to state adequate reasons for

imposing the sentence. See State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980)

(“[W]hen a trial court fails to state on the record its reasons for the sentence

imposed, the sentence must be vacated and the case remanded for amplification

of the record and resentencing.”).

      In criminal cases the court is to “state on the record its reasons for

selecting the particular sentence.” Iowa R. Crim. P. 2.23(3)(d). We review both

the court’s stated reasons made at the sentencing hearing and its written

sentencing order. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).

The statement of reasons can be “terse and succinct,” as long as its brevity does

not hinder review of the district court’s discretion. State v. Victor, 310 N.W.2d

201, 205 (Iowa 1981).      A court has provided an adequate statement for our

review when it “recites reasons sufficient to demonstrate the exercise of


      then we should not look beyond that point. I see absolutely nothing
      wrong, and as a matter of fact I think it should be encouraged, in a judge
      speaking freely, openly and expansively to the defendant, lecture, cajole,
      empathize, sympathize, show compassion, warmth, and comprehension,
      show anger, umbrage, ire and indignity. These are human emotions that
      are meaningful to the person before the court, emotions they understand
      and can easily comprehend. To go by rote in an emotionless ritual loses
      its human values and is less effective for the purpose for which the
      sentence was intended.          It is a “showdown” where society, as
      represented by the judge, confronts a defendant for his antisocial conduct
      as represented by violation of laws under a constitutional legal system. A
      ritualistic, meaningless spew of words do[es] not impress on a defendant
      the gravity nor the importance of this final (or mostly so) confrontation for
      his violation of his public responsibility. The time of sentencing is a
      desirable place for the judge to let his feeling be known, if he indeed
      wishes to do so, and, if not, so be it.
                                         8


discretion and indicates those concerns which motivated the court to select the

particular sentence which it imposed.” State v. Garrow, 480 N.W.2d 256, 259–60

(Iowa 1992).

      At sentencing the district court stated:

      Mr. Wrage, were it so simple as to be concerned with you only
      destroying your own life, that would be one thing. But you’re doing
      far beyond that. You’re putting this poison into the stream of
      commerce to destroy not just yourself, but anyone else that it
      comes into contact with. You’ve got an abysmal drug record and
      you have been through this treatment program before and here you
      are yet once more. So I don’t accept the notion that you have
      learned anything or that you intend to change.              You have
      demonstrated time and time and time again that you’re committed
      to a life of misery, a life of drug abuse and a life of inflicting your
      misery on other people. And so you richly deserve what has been
      recommended here today and that is what I am going to go with.

After imposing sentence the court further stated, “The point, Mr. Wrage, is simply

this, you have chosen to want to inflict harm not just upon yourself but upon

others as well. So if you won’t stop on your own, then we have no choice but to

stop you this way.”

      The strongly worded reasons include the fact that Wrage is a recidivist

who has had multiple opportunities to correct his life’s path, and who has chosen

not to do so as reflected by the commission of new crimes. The court also noted

that a past treatment program had been unsuccessful.          Further, his criminal

activity involved others. We think the succinct and terse statement provides

ample record to review and constitutes adequate reasons for the sentences

imposed. We find no abuse of discretion.
                                        9


         C. Ineffective Assistance of Counsel.

         We   generally preserve   ineffective-assistance-of-counsel   claims for

postconviction-relief proceedings. State v. Utter, 803 N.W.2d 647, 651 (Iowa

2011); see also Iowa Code § 814.7(3) (2011) (“If an ineffective assistance of

counsel claim is raised on direct appeal from the criminal proceedings, the court

may decide the record is adequate to decide the claim or may choose to

preserve the claim for determination under chapter 822.”). “Only in rare cases

will the trial record alone be sufficient to resolve the claim on direct appeal.”

State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We prefer to reserve such

claims for development of the record and to allow trial counsel to defend against

the charge. Id. If the record is inadequate to address the claim on direct appeal,

we must preserve the claim for a postconviction-relief proceeding, regardless of

the potential viability of the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa

2010).

         Wrage claims defense counsel provided ineffective assistance at

sentencing because counsel failed to ensure that the district court asked if there

was any legal cause why judgment and sentencing should not now be imposed.

We find this argument to be without merit as Wrage has not alleged any legal

cause existed that should have been addressed before judgment and sentencing

were announced. Furthermore, the record reflects Wrage had a full opportunity

to make a statement in allocution and the district court otherwise substantially

complied with its duties. See Rhiner v. State, 703 N.W.2d 174, 179-180 (Iowa

2005) (citing State v. Craig, 562 N.W.2d 633, 635 (Iowa 1997) (“[S]entencing

courts need only to be in substantial compliance with sentencing procedures in
                                       10

order to satisfy those procedures.”)); see also Hantsbarger v. Coffin, 501 N.W.2d

501, 504 (Iowa 1993) (“Substantial compliance is ‘compliance in respect to

essential matters necessary to assure the reasonable objectives of the statute.’”

(quoting Superior/Ideal, Inc. v. Bd. of Review, 419 N.W.2d 405, 407 (Iowa

1988))).

      AFFIRMED.
