                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0380
                            Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY EARL HOPKINS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



      Defendant appeals the sentence imposed for his conviction for attempted

burglary, third degree.     SENTENCE VACATED AND REMANDED FOR

RESENTENCING.




      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

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

General, and Carlyle Dalen, County Attorney, for appellee.



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

         Anthony Hopkins appeals the sentences imposed for his conviction for

attempted burglary, third degree, in violation of Iowa Code sections 713.2 and

713.6B(A) (2011).        On appeal, Hopkins maintains the district court relied on

improper factors in imposing his sentence, namely unproven claims. He asks

that we remand for resentencing. Because we find the district court did consider

an impermissible factor, we vacate the sentence and remand for resentencing.

I. Background Facts and Proceedings.

         On June 1, 2012, Hopkins was charged by trial information with burglary in

the first degree and harassment in the first degree.

         On March 1, 2013, Hopkins and the State entered into a plea deal, in

which Hopkins would offer an Alford plea1 for the amended charge of attempted

burglary in the third degree. The State then dismissed the charge of harassment

in the first degree.

         On March 18, 2013, the district court sentenced Hopkins to 180 days in

county jail. Hopkins filed a notice of appeal on March 19, 2013.

         In the unpublished opinion, State v. Hopkins, No. 13-0454, 2013 WL

6700300, at *2 (Iowa Ct. App. Dec. 18, 2013), we found the district court relied

on an improper sentencing factor and vacated Hopkins sentence.

         Hopkins was re-sentenced on March 5, 2014. The court stated, in part:

               The second thing is that the Court has to be concerned
         about your rehabilitation, the protection of the community, and that
         the sentence deters others from doing the same thing.
               My concern with this offense is a couple of things.
         Number 1, this involves according to the Minutes of Testimony,

1
    See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                         3


      which I believe pursuant to your plea you allowed the Court to look
      at, involves an allegation that you essentially broke into someone’s
      house and were going to assault them. And I’m aware that this is
      an Attempted Burglary, but my concern is that really is a serious
      crime in the sense that most people feel safe in their home. It
      should be the one place that you can go and lock out the world and
      not have to be afraid; but in this case, you’re attempting to enter
      someone’s home, that is going to cause people anxiety and
      concern and fear in the place that they really should feel the safest
      in this world and that is their home. So that’s the first thing that I’m
      concerned about.
              I’m also a little bit concerned about your statement that you
      don’t have any prior record because what I have in front of me even
      if I don’t talk about the other states, and I’m not going to talk about
      them because I’ll give you—it’s difficult to determine what’s a
      conviction and what’s not on another state’s criminal history. But
      what I’m looking at shows that you have an Iowa criminal history
      that involves prior charges, including some possession charges. I
      believe there’s some consumption charges, a Driving While Barred
      offense, Theft offense, Criminal Mischief; so it’s not that you’re
      coming in here with a squeaky clean record, that you’ve never been
      in trouble with the Court before. This isn’t your first rodeo is the
      way that they put it sometimes. And so it concerns me a little bit
      that you’re downplaying your prior criminal record, along with
      entering an Alford plea and taking no responsibility for what
      happened in this case.
              And I specifically referred to the State v. Knight case that
      says an Alford plea is a guilty plea and that your lack of remorse
      which you've not shown to me today in any of your statements,
      didn’t apparently show any of that in the prior plea proceedings, is a
      bit concerning. Again, given that this is an allegation of a crime that
      occurred in someone’s house. And more specifically than that,
      occurred in the house of I believe a relative of yours. Again, the
      place that they should feel the most safe from the world is being
      violated.

The court then sentenced Hopkins to an indeterminate term of incarceration not

to exceed two years. Hopkins 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
                                        4


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).

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.

      Hopkins claims the sentencing court erred by considering unproven claims

when determining the appropriate sentence. In making his assertion, Hopkins

relies on the court’s reference that he “essentially broke into someone’s house,”

and the two statements that the crime occurred “in” the house.

      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.

      We conclude the court’s explanation reveals it considered an unproven

crime allegedly committed by Hopkins. Essentially, the district court considered

the facts listed in the minutes of testimony that supported the unprosecuted

greater charge of first-degree burglary rather than the actual charge of attempted
                                            5


burglary in the third degree.2 While the court referenced an attempt to enter

someone’s home during the colloquy, the court also stated Hopkins “essentially

broke in” and twice characterized the situation as a crime that occurred “in”

someone’s house. The court did so without any admission from Hopkins that he

entered another’s home. “Where portions of the minutes are not necessary to

establish a factual basis for the plea, they are deemed denied by the defendant

and are otherwise unproved and a sentencing court cannot consider or rely on

them.” State v. Gonzales, 582 N.W.2d 515, 517 (Iowa 1998).

       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

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

2000); see also State v. Thompson, 275 N.W.2d 370, 372 (Iowa 1979) (“A

sentencing court may, within statutory limits, impose a severe sentence for a

lower crime on the ground that the accused actually committed a higher crime on

the occasion involved if the facts before the court show the accused committed

the higher crime or if the defendant admits it . . .”). 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


2
  Whereas burglary requires the defendant “enters an occupied structure” while “having
the intent to commit a felony, assault, or theft therein,” attempted burglary requires that
the defendant “attempts to enter an occupied structure” while “having the intent to
commit a felony, assault, or theft therein.” See Iowa Code §§ 713.1, 713.2.
                                        6

the trial court mentally assigned to [the improper factors].” State v. Messer, 306

N.W.2d 731, 733 (Iowa 1981). Here, Hopkins never admitted the greater offense

of burglary nor the facts supporting that offense, and the district court erred in

considering those allegations. Accordingly, Hopkins’ sentence is vacated, and

we remand for resentencing.

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.
