                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1853
                           Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAMARIO JOHNSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, William L.

Dowell, Judge.



      A defendant appeals the sentences received for charges of possession of

a controlled substance with intent to deliver and ongoing criminal conduct

involving specific unlawful activity. AFFIRMED.



      William R. Monroe of the Law Office of William Monroe, Burlington, for

appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Bower, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

       Damario Johnson pled guilty to charges of possession of a controlled

substance with intent to deliver and ongoing criminal conduct involving a

specified unlawful activity.   Johnson was sentenced accordingly, and he has

appealed the sentences.

       I.     Factual Background

       The Burlington Police Department used a confidential informant to conduct

a series of controlled drug buys from Johnson.      The first buy took place on

May 21, 2015, and three more buys were conducted, with the last taking place

on July 17, 2015. In each transaction the controlled substance was cocaine.

After the last transaction, the officers obtained a search warrant to search

Johnson’s residence, and the search uncovered ecstasy tablets, crack cocaine,

powder cocaine, and a loaded handgun. Johnson was charged with four counts

of delivery of a controlled substance, three counts of possession of a controlled

substance with intent to deliver, and one charge of ongoing criminal conduct of a

specified unlawful activity, for which the predicate offenses were the charges of

possession with intent to deliver.

       A plea offer was made providing that if Johnson entered the plea of guilty

to specified ongoing criminal conduct and one of the charges of possession of a

controlled substance involving cocaine, the remaining charges would be

dismissed. The plea agreement allowed both Johnson and the State to make

any sentencing recommendation they desired. The offer was accepted, pleas of

guilty were entered to the two charges, and all the other charges were dismissed.

As a part of the plea proceeding, Johnson admitted the four sales of cocaine
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supporting the ongoing criminal conduct charge. A presentence investigation

(PSI) report was ordered.     The PSI report reflected that Johnson had been

charged seventeen different times but only twelve of the charges had resulted in

a conviction.

       At sentencing, the court acknowledged the plea agreement, the entry of

the plea, and the receipt of the copy of the PSI. Johnson’s counsel made some

minor objections to the PSI. Johnson was asked if there was any reason the

sentence should not be pronounced, and Johnson said, “No.” The court then

stated, “It is now ordered adjudged, and decreed that the defendant is guilty of

the crime of acts of specific unlawful activity . . . also possession of a controlled

substance with intent to deliver.” The State then made a recommendation of

incarceration. The State further requested a twenty-five-year sentence on the

charge of ongoing criminal conduct and ten years on the charge of possession of

cocaine with intent to deliver, with the sentences to run concurrently. Johnson’s

counsel recommended a deferred judgment or, if not acceptable to the court,

probation with placement at a residential facility, as had been recommended in

the PSI report. The court offered Johnson his right of allocution, but he declined

the invitation.

       The court sentenced Johnson to a twenty-five-year term and a ten-year

term, a fine, and other financial obligations not material to this appeal. Johnson

appealed. In his pro se brief, Johnson contends that by reciting the finding of

guilt before his counsel had the opportunity to make counsel’s recommendation

of a deferred judgment, Johnson was in fact denied the possibility of receiving a

deferred judgment. He also contends that because the PSI report referred to
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charges that did not result in convictions, the court relied on unproven offenses in

its sentencing.

       II.    Preservation of Error

       The State does not contest error preservation.

       III.   Standard of Review

       Sentences are reviewed for corrections of law and will not be reversed

absent an abuse of discretion or some defect in the sentencing procedure. State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

       IV.    Discussion

       Johnson’s     primary    complaint     stems   from    an   understandable

misconception.     The court announced he was guilty before even hearing his

request for a deferred judgment. Johnson’s position is the court’s statement of

guilt foreclosed the deferred judgment even before the court had heard his

reasons for asking for one. As he expresses it, “the court put the cart before the

horse.”

       Iowa Code section 901.5(1) (2015) authorizes a deferred judgment as a

sentence alternative. A deferred judgment is not a deferred prosecution, which is

primarily a nonjudicial procedure sometimes employed by prosecutors.              A

deferred judgment is available after the verdict is rendered and not until then.

Johnson quotes a myriad of authorities, but none hold that a deferred judgment is

available only before a party has been found guilty or that a deferred judgment is

not available after a finding guilt under Iowa law.

       As to Johnson’s second issue, a court is not permitted to rely on unproven

and unadmitted offenses in the determination of an appropriate sentence. See
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State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). However, for Johnson to

obtain relief, he must affirmatively show that the court did in fact rely on an

unproven or unadmitted offense in determining his sentence. See State v. Jose,

636 N.W.2d 38, 41 (Iowa 2001). Johnson admitted four predicate charges of

possession with intent to deliver that were the basis of the charge of ongoing

criminal conduct. It is true the PSI listed seventeen arrests and only twelve

convictions. The court gave its reasons for the sentence and did not indicate any

reliance on the seventeen arrests. The presumption is that the court properly

exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282 (Iowa

1990). Nothing to the contrary has been shown.

      We affirm Johnson’s convictions and sentences.

      AFFIRMED.
