                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1921
                             Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PATRICK EARL SUMERALL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      Patrick Sumerall appeals the sentences imposed upon his guilty pleas to

conspiracy to commit a forcible felony and carrying weapons. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

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

General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                                 2


MULLINS, Judge.

           Patrick Sumerall appeals the sentences imposed upon his guilty pleas to

conspiracy to commit a forcible felony and carrying weapons. He claims the court

improperly considered the unproven crime of robbery in the first degree when

determining his sentences.

I.         Background Facts and Proceedings

           In April 2017, Patrick Sumerall was charged by trial information with

conspiracy to commit a forcible felony1 and carrying weapons.                      In October,

Sumerall agreed to plead guilty to the charges. During the plea hearing, Sumerall

admitted to conspiring with several people to rob a check-cashing business and

gathering weapons to use during the robbery. The court accepted Sumerall’s guilty

pleas and set his sentencing for a later date.

           During the sentencing hearing, the State recommended consecutive

sentences of a ten-year term of incarceration for the conspiracy offense and a two-

year term of incarceration for the carrying-weapons offense. Sumerall requested

a deferred judgment. The presentence investigation report (PSI) recommended

Sumerall receive a suspended sentence and be committed to the supervision of

the Department of Corrections for two to five years. The court denied Sumerall’s

request for a deferred judgment and sentenced him to an indeterminate term of

incarceration not to exceed ten years for the conspiracy offense and an

indeterminate term of incarceration not to exceed two years for the carrying-

weapons offense, to run concurrently.



1
     The trial information identified the underlying forcible felony as first-degree robbery.
                                            3


          Sumerall appeals, claiming the court impermissibly relied upon the

unprosecuted offense of robbery in the first degree and unadmitted acts committed

during the conspiracy in formulating the ordered sentences.              He contends

references made by the court in the sentencing colloquy demonstrated the court’s

focus was on the intended crime rather than the actual crimes to which he pled

guilty.

II.       Discussion

          Our review is for the correction of errors at law. State v. Sailer, 587 N.W.2d

756, 758 (Iowa 1998). “Sentencing decisions of the trial court are cloaked with a

strong presumption in their favor.” State v. Loyd, 530 N.W.2d 708, 713 (Iowa

1995).      We will not upset a sentence on appeal “unless the defendant

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

procedure, such as trial court consideration of impermissible factors.” Sailer, 587

N.W.2d at 758–59. “An abuse of discretion will not be found unless we are able to

discern that the decision was exercised on grounds or for reasons that were clearly

untenable or unreasonable.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

          It is “important to consider the host of factors that weigh in on the often

arduous task of sentencing a criminal offender, including the nature of the offense,

the attending circumstances, the age, character and propensity of the offender,

and the chances of reform.” Id. at 724–25. However, sentencing courts “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.”         Id. at 725.     “A sentencing court may consider

unprosecuted offenses in imposing sentences only if admitted by the defendant or
                                            4


adequate facts are presented at the sentencing hearing to show the defendant

committed the crimes.” State v. Delaney, 526 N.W.2d 170, 179 (Iowa Ct. App.

1994).

         If a sentence is challenged due to improper consideration of unproven

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

the record to establish the matters relied on.” State v. Grandberry, 619 N.W.2d

399, 401 (Iowa 2000). Resentencing is required if the court uses any improper

consideration when determining a sentence, even if it is only a secondary

consideration. Id. We will not “speculate about the weight [the] trial court mentally

assigned this factor, or whether it tipped the scales to imprisonment.” State v.

Messer, 306 N.W.2d 731, 733 (Iowa 1981). We will also “not draw an inference of

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

Formaro, 638 N.W.2d at 725. A defendant must make an affirmative showing that

a district court relied on improper evidence, such as unproven offenses, in order

to overcome the presumption in favor of a sentencing decision. State v. Jose, 636

N.W.2d 38, 41 (Iowa 2001).

         During sentencing hearing, the court engaged in the following colloquy:

                 All right. The Court, knowing of no reason, it is hereby ordered
         and adjudged that you’re guilty of the crimes of conspiracy to commit
         a forcible felony and carrying weapons. The Court will impose a
         $1,000 fine and a $625 fine in both one and two. I’m going to impose
         a 10-year term of incarceration in count one and a two-year term of
         incarceration in count two. Court costs will be entered as a judgment
         in this particular case.
                 ....
                 I will note that I have considered your request for a deferred
         judgment. I don’t believe that you’re, frankly, a good candidate for a
         deferred judgment. I’ve considered your prior criminal history. I have
         considered the fact that you have received a deferred judgment
                                         5


      previously. I have also contemplated and considered the nature and
      the extent of this particular offense.
             As counsel has alluded to, the planning that was necessary
      and that went into the commission of this crime; the significant
      danger that this crime in and of itself posed to this community; the
      fact that it, frankly, wasn’t spontaneous; that this went on for some
      period of time regarding planning, and that over the course of that
      opportunities arose on multiple occasions for you to simply pump the
      brakes and recognize that this was not something that you wanted
      to be involved in and nonetheless you continued to do so.
             Robbery in the first degree is obviously a heinous crime in this
      state. It’s something that is punishable, as you’re well aware, of 25
      years in prison with a mandatory 17 and a half. And so this offense
      of conspiring to commit such an act is not lost on the Court in its
      consideration here today. I have considered the state’s request to
      run the sentences consecutive to one another. I am not doing that.
      But I’m not suspending the sentence either. And so ultimately the
      Court will impose a 10-year prison term today. That amount of time
      does not necessarily mean you will serve 10 years. . . .
             ....
             In pronouncing judgment and sentence the Court has
      considered the factors set out in Iowa Code section 907.5. The Court
      has and does consider the sentence to be appropriate considering
      the recommendations of counsel, the nature of this offense, your
      age, and the fact that you do have a prior criminal history, and the
      sentencing goals and objectives of this Court.
             As I’ve stated, I do believe this sentence is appropriate given
      the planning involved, the serious nature of this crime, the danger to
      the community, the fact that you and your coconspirators
      contemplated restraining the victims in this particular case by tying
      them up, the fact that an actual firearm, not just a BB gun but an
      actual firearm was intended to be used are all significant factors in
      the Court’s consideration of the imposition of a prison sentence.

(Emphasis added.) Sumerall challenges the emphasized portions of the court’s

sentencing colloquy.

      As to the first portion, the court’s statement, when read in context, refers to

the nature of the offense, not an unproven or unprosecuted charge. Sumerall pled

guilty to conspiracy to commit a forcible felony—first-degree robbery. As to the

second portion, during the plea hearing Sumerall admitted to gathering weapons

for use in the plan to rob the check-cashing business. Further, the contemplated
                                        6


actions of restraining people and the use of weapons are clearly set forth in the

PSI. When the sentencing hearing began, the court confirmed with the defense

that it received the PSI and had no additions, corrections, or deletions to make.

Sumerall did not object or challenge any part of the PSI, nor does he challenge it

now.

       Under our standard of review, the court was justified in imposing

incarceration due to the serious nature and the attending circumstances of the

offenses, including the planned use of weapons. See Formaro, 638 N.W.2d at

725. The sentences imposed by the court were within statutory limits and based

on valid and permissible considerations.

       AFFIRMED.
