                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1679
                               Filed June 25, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN LINDSEY WORKMAN,
     Defendant-Appellant.
________________________________________________________________

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

Schroeder, Judge.



      Johnathan Lindsey Workman appeals his conviction and sentence for

child stealing. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Ney, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Carlyle D. Dalen, County Attorney, and Rachel Ginby,

Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.

      Johnathan Lindsey Workman appeals his conviction and sentence for

child stealing. Workman claims the district court relied on impermissible factors

in imposing his sentence. We find Workman has failed to show the district court

relied upon charges that were dismissed as part of the plea agreement in

imposing his sentence. Accordingly, we affirm.

I.    Background Facts and Proceedings

      Johnathan Workman pled guilty to one count of child stealing, in violation

of Iowa Code section 710.5 (2013), after he attempted to leave a bar with a

person’s small child. Workman was also charged with two counts of assault

while participating in a felony, in violation of section 708.3. The assault counts

were dropped as a part of a plea agreement. Workman entered an Alford plea

and was sentenced to a term not to exceed ten years in prison.

      During the sentencing hearing, the district court made the following

statement:

      The laws of Iowa require that a court impose a sentence that best
      provides for a person’s rehabilitation, protects our community, and
      deters others from committing this type of offense. In trying to
      determine what kind of sentence is appropriate, I look at everything
      I learn about you through the presentence investigation report, I
      look at everything I learn about this case through the file, I consider
      the things that were said on your behalf today by Ms. Turner, I’ve
      considered your age, I’ve looked at your education, I’ve also looked
      at your lengthy criminal history, I’ve looked at your lengthy battle
      with substance abuse issues and the troubles that you’ve had on
      supervision in the past. Based on everything that I’ve learned
      about you, and the factors I’ve considered, I’m going to order you to
      serve an indeterminate sentence of up to ten years in the Iowa
      State Prison System. I’m not going to suspend that sentence.
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Workman claims the district court’s reference to “everything I learn[ed] about this

case through the file” is a clear indication the district court relied upon the other,

unproven, charges in determining his sentence.

II.    Standard of Review

       Our review of the legality of the sentence is for correction of errors at law.

State v. Keutla, 798 N.W.2d 731, 732 (Iowa 2011).

III.   Discussion

       Workman raises a single issue on appeal.              Did the district court

impermissibly rely on unproven charges in imposing his sentence? We find it did

not.

       The district court is not permitted to consider unproven or unprosecuted

charges when sentencing a defendant unless the facts clearly establish the

offense was committed or the defendant admits the facts of the offense. State v.

Jose, 636 N.W.2d 38, 41 (Iowa 2001). The defendant must make an affirmative

showing that the district court relied upon improper evidence of unproven

charges.    State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998).               A strong

presumption works in favor of the sentencing options exercised by the district

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

       In Jose, our supreme court rejected a similar claim when the district court

stated it was relying on “your additional crimes.”       636 N.W.2d at 41.       The

statement fell short of showing a reliance on unproven crimes and was

interpreted as relying only upon prior convictions. Id. at 41–42. In reaching its

decision, the Jose court summarized instances where an affirmative showing
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was made by the defendant. Id. at 42–43. In each case, the district court had

expressly referred to the unproven charges or the “factual circumstances” of the

charges.   Id.   We find no such reliance here.     The district court referred to

“everything in the file”, and while that could include the charges that were

eventually dismissed, we find no affirmative showing the district court was

specifically relying on unproven charges. Rather, the court’s reference to the file

is part of a summarization of specific pieces of evidence relied upon, many of

which would be contained in the file. Considering the context of the remarks, we

find Workman has failed to make the necessary showing.

      AFFIRMED.
