                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0114
                              Filed January 9, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TASHA LYNNE KOPPES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager,

District Associate Judge.



      Tasha Koppes appeals her sentence following her guilty plea to interference

with official acts resulting in bodily injury. CONVICTION AFFIRMED, SENTENCE

VACATED, AND REMANDED FOR RESENTENCING.




      Christopher C. Fry and Alyssa M. Carlson of O’Conner & Thomas, P.C.,

Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

       The State originally charged Tasha Koppes with the aggravated

misdemeanor crime of “assault on persons in certain occupations-bodily injury.”

See Iowa Code § 708.3A(3) (2017). Koppes pled guilty to interference with official

acts resulting in bodily injury, a serious misdemeanor. See id. § 719.1(1)(c). The

district court adjudged her guilty and sentenced her to 365 days in jail with all but

ninety days suspended.

       On appeal, Koppes contends the court relied on impermissible factors in

sentencing her. Specifically, she asserts the court “improperly considered the

aggravated misdemeanor offense with which [she] was originally charged when

issuing its sentence for the serious misdemeanor to which [she] pled guilty” and

“improperly based [her] sentence on unprosecuted and unproven substance-

related offenses.”

       “A court may not consider an unproven or unprosecuted offense when

sentencing a defendant unless (1) the facts before the court show the accused

committed the offense, or (2) the defendant admits it.” See State v. Gonzalez, 582

N.W.2d 515, 516 (Iowa 1998).         Where a court considers an unproven or

unprosecuted offense without a showing of or admission to the underlying facts,

we will vacate the sentence and remand the case for resentencing. See State v.

Sinclair, 582 N.W.2d 762, 765 (Iowa 1982).

       “A person commits interference with official acts when the person knowingly

resists or obstructs anyone known by the person to be a peace officer . . . in the

performance of any act which is within the scope of the lawful duty or authority of

that officer.” Iowa Code § 719.1(1)(a). “If [the] person commits interference with
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official acts, as defined in this subsection, which results in bodily injury, the person

commits a serious misdemeanor. Id. § 719.1(1)(c).

        The State offered a document reflecting Koppes’ criminal history. Koppes’

attorney did not object to consideration of the history and made reference to

Koppes’ “two prior OWI’s.” In sentencing Koppes, the district court also referred

to Koppes’ prior operating-while-intoxicated offenses but went further. The court

stated:

        [T]his is the third time now that some alcohol- or drug-related—I don’t
        know what the facts were of the prior OWI’s but it’s the third time that
        there has been an offense related to substance abuse and, again, I
        can’t chalk this up to youthful inexperience. You’ve had the prior
        OWIs. You’re on probation for the last OWI.

(Emphasis added.)

        The crime to which Koppes pled guilty contained no substance-abuse

related element. Nor are there facts showing Koppes committed a substance-

abuse related offense or admitted to such an offense. At most, the record contains

defense counsel’s statement that Koppes and the group she was with “knew that

they’d probably be drinking” and Koppes took an Uber and booked a hotel to avoid

getting “another—any kind of drinking-and-driving charge.” Koppes herself stated,

“[W]e were at the time sleeping in our beds. We weren’t out partying or drinking

all night.”

        Based on this record, we conclude an unproven or unprosecuted

substance-abuse related offense was considered in sentencing. We vacate the

sentence and remand for resentencing. Because we are vacating on this ground,
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we need not consider Koppes’ contention that the district court impermissibly

considered the crime with which she was originally charged.

      CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.

      Mullins, J., concurs; Ahlers, J., dissents.
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AHLERS, Judge (dissenting).

       I respectfully dissent. Our supreme court has emphasized that a “sentence

within the statutory limits is cloaked with a strong presumption in its favor, and will

only be overturned for an abuse of discretion or the consideration of inappropriate

matters.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). To overcome the

presumption, a defendant must affirmatively show that the district court relied on

improper evidence such as unproven offenses. State v. Jose, 636 N.W.2d 38, 41

(Iowa 2001). Tasha Koppes did not make such a showing.

       Koppes asserts two claims of improper consideration of unprosecuted and

unproven offenses: (1) consideration of the original charge instead of the amended

charge to which Koppes pled guilty; and (2) consideration of the amended charge

as a substance-related offense.

       Regarding Koppes’s claim that the district court improperly considered the

aggravated misdemeanor with which she was initially charged rather than the

serious misdemeanor to which she pled guilty, “[t]he fact that the sentencing judge

was merely aware of the uncharged offense is not sufficient to overcome the

presumption that [the court’s] discretion was properly exercised.” State v. Guise,

921 N.W.2d 26, 30 (Iowa 2018) (quoting State v. Ashley, 462 N.W.2d 279, 282

(Iowa 1990)). Overcoming this presumption requires “an affirmative showing that

the trial judge relied on the uncharged offenses.” Id. (quoting Ashley, 462 N.W.2d

at 282). Koppes faults the State for commenting during sentencing, “This could

have ended up much worse than it already did.” She asserts that this comment is

a veiled reference to the original charge. However, this comment can just as easily

be construed as a simple reference to the fact that, when Koppes criminally
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intervened in the officer’s attempts to arrest her sister, the circumstances could

have easily escalated into a much more dangerous or violent episode. It should

not be presumed that the district court construed the State’s ambiguous comment

in the inappropriate way Koppes suggests. In fact, the presumption is that the

district court construed the comment in an appropriate way. See id. (discussing

the presumption that the trial court properly exercised its discretion during

sentencing). Even if the State intended for its comment to reference the original

aggravated misdemeanor charge, there is nothing in the record suggesting that

the district court relied on the comment or the original charge. The court fully

explained its reasons for the sentence without mentioning the aggravated

misdemeanor.     I would find the court did not improperly rely on the original

aggravated misdemeanor charge in sentencing.

       Regarding Koppes’s claim the district court improperly considered her pled

offense as a substance-related offense, “[w]e will not draw an inference of

improper sentencing considerations which are not apparent from the record.”

Formaro, 638 N.W.2d at 725. Koppes bases this claim on the court’s statement

that “it’s the third time that there has been an offense related to substance abuse.”

First, I note Koppes, not the State, informed the court that she had been drinking

on the night of the incident.1 It strikes me as fundamentally unfair for her to inform

the court that she had been drinking and then claim the court erred by referring to


1 During the course of the sentencing hearing, Koppes’s attorney informed the
court that she had gone to Dubuque to attend a mixed martial arts fight with her
sister and her sister’s friend, expected they would drink alcohol that night, and
arranged for a hotel and Uber rides to and from the hotel in anticipation of such
drinking in part to avoid another operating-while-intoxicated charge. Her brief
acknowledges she “admitted to drinking alcohol earlier in the evening.”
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that information in the course of sentencing. Second, Koppes mischaracterizes

the court’s statement.    The court never claimed she was intoxicated during the

altercation, nor did it claim intoxication was an element of the crime to which she

pled. The court simply observed her crime was “related” to substance abuse in

that she admittedly consumed alcohol in the hours leading up to her crime. To

suggest anything more from the court’s comments demands too much of the court2

and undermines the presumption of proper exercise of discretion. Koppes had two

prior operating-while-intoxicated convictions, and she acknowledged renting a

hotel room on the night at issue here to avoid committing another operating-while-

intoxicated offense. The court’s statement that the altercation was related to her

earlier alcohol use is supported by the record, and I do not find an apparent

consideration of an improper factor.

       I believe the district court did not improperly consider any unprosecuted or

unproven offenses in issuing Koppes’s sentence. I believe her sentence was

within the court’s discretion, and I would affirm.




2In assessing a trial court’s choice of words, this court has aptly noted:
      We understand the rigors of the trial process and recognize that the
      intensity of the moment may result in comments which greater
      deliberation would reject. We are also aware that the sentencing
      process can be especially demanding and requires trial judges to
      detail, usually extemporaneously, the specific reasons for imposing
      the sentence. The performance of this judicial duty can produce
      “unfortunate phraseology” and unintended or misconstrued remarks.
State v. Thomas, 520 N.W.2d 311, 313–14 (Iowa Ct. App. 1994) (citations
omitted).
