                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1402
                              Filed May 15, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERRANCE O. WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.



      Terrance Williams appeals the sentence imposed following his conviction

for child endangerment. AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Vidhya K.

Reddy and Mary K. Conroy, Assistant Appellate Defenders, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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DOYLE, Judge.

         Terrance Williams appeals the two-year suspended sentence imposed

following his conviction for child endangerment. We review sentencing decisions

for correction of errors at law. See State v. Formaro, 638 N.W.2d 720, 724 (Iowa

2002). If the sentence imposed is within the statutory limits, it “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.”          Id.   An abuse of

discretion occurs when the evidence does not support the sentence. See State v.

Valin, 724 N.W.2d 440, 445 (Iowa 2006).

         Williams first contends the district court erred by failing to allow the mother

of the child to make a statement before it pronounced sentence. The State

counters that Williams failed to preserve error because he did not raise this claim

below.     In order to preserve error, “objections must be raised at the earliest

opportunity after the grounds for the objection become apparent.” Tindell v. State,

629 N.W.2d 357, 359 (Iowa 2001). Although Iowa Rule of Criminal Procedure

2.24(5)(a) states that the court may correct an illegal sentence at any time, it does

“not allow challenges to sentences that, because of procedural errors, are illegally

imposed.” Id.; accord 3 Charles Alan Wright, Federal Practice and Procedure

§ 585, at 395 (1982) (“There is a distinction between an illegal sentence and a

sentence imposed in an illegal manner.”). Because Williams is challenging the

sentencing procedure rather than the legality of his sentence, he was required to

address his claim to the sentencing court in order to preserve error on appeal. Cf.

State v. Tesch, 704 N.W.2d 440, 450 (Iowa 2005) (considering claim that trial

counsel was ineffective by failing to object to victim impact statements given by
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persons who were not victims within the meaning of Iowa Code section 915.10

(2001)); State v. Dake, 545 N.W.2d 895, 897 (Iowa Ct. App. 1996) (finding claim

that trial court erred in considering victim impact statements for which defendant

had not been provided notice was preserved for review where “defense counsel

informed the judge neither he nor defendant had received or read the victim impact

statements”). The record shows that he did not. Williams’s attorney informed the

sentencing court that the child’s mother wanted to address the court “if that would

be appropriate.” When the court asked if he had any other evidence to present on

Williams’s behalf besides the written documents it had admitted, Williams’s

counsel answered, “No, Your Honor.”            Both parties made their sentencing

recommendations, and Williams was allowed to make his allocution. The court did

not ask the mother to speak before it imposed the two-year suspended sentence.1

Because Williams never raised an objection or otherwise notified the court

concerning its failure to allow the child’s mother to make statement, he failed to

preserve error.

       Williams next contends the district court abused its discretion by considering

and relying on a fact that was neither proven nor admitted. Specifically, he claims

that the court improperly considered that he hit a six-year-old child with a belt.

Williams was charged with child endangerment causing bodily injury, in violation

of Iowa Code section 726.6(6) (2016), a class “D” felony. The State reduced the

charge to child endangerment, in violation of section 726.6(7), an aggravated

misdemeanor, and agreed to recommend a suspended sentence in exchange for


1
  The child’s mother was allowed to speak extensively to the court after sentencing when
the court addressed the issue of continuing a no-contact order.
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Williams’s guilty plea. His written plea states that the court may rely on the minutes

of evidence attached to the trial information in determining the existence of a

factual basis for his plea.

       The sentencing court may consider those facts contained in the minutes of

evidence that are admitted to or otherwise established as true. See State v. Lovell,

857 N.W.2d 241, 243 (Iowa 2014). On the other hand, a sentencing court may not

consider facts not proven or not admitted when sentencing a defendant. See State

v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) ("Where portions of the minutes

are not necessary to establish a factual basis for a plea, they are deemed denied

by the defendant and are otherwise unproved and a sentencing court cannot

consider or rely on them."). This is true "even if the prosecutor originally charged

the higher crime and reduced the charge." State v. Thompson, 275 N.W.2d 370,

372 (Iowa 1979). So, the question boils down to whether the fact that Williams

used a belt to strike the child was necessary to establish a factual basis for the

plea. We think it was.

       Williams specifically admitted in his written plea that he “intentionally acted

in a manner that resulted in a physical injury.”      Under any definition of child

endangerment, proof of knowingness or intent is required.                Iowa Code

§ 726.6(1)(a)-(i). We believe the sentencing court’s reference to the use of a belt

goes to the requisite intent element. During sentencing, the court stated:

       I understand that you’re saying that it was a punishment, but there’s
       a difference between punishment and correction versus abuse. And
       when a person has to go and get an object to hit a child, that is abuse.
               If you would have used your hand and spanked him for the
       purpose of correction, I’m sure we wouldn’t be here. It’s when you
       pick up an object and hit a six-year-old, somebody who is quite a bit
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     smaller than you, weighs less, has less intelligence, less defense.
     As you hit him with that belt, he had no choice but to take it.
Because Williams admitted to the facts contained in the minutes of evidence, and

those facts indicate he hit the child with a belt, evidencing intent, the sentencing

court was permitted to consider that fact in pronouncing sentence.

       Finally, Williams contends the court abused its discretion by employing a

fixed sentencing policy in sentencing him. He claims that the sentencing court’s

statement that it views a deferred judgment appropriate when “somebody [does]

an act that was out of character; it was a one-time mental aberration and that they

would never do it again.” The court concluded that Williams’s act “wasn’t a one-

time mistake or a quick by-the-seat-of-your-pants type of thing” but rather was one

that Williams had discussed with the child’s mother in the weeks leading up to it.

The court also cited Williams’s age, the circumstances surrounding the act, and

the seriousness of the crime before stating it would not grant Williams a deferred

judgment “for those reasons.” Because the record indicates the court exercised

its discretion in sentencing Williams, we affirm.

       AFFIRMED.

       Vaitheswaran, P.J., concurs; Potterfield, J., dissents.
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POTTERFIELD, Judge (dissenting).

      I would reverse. The allegation that Williams hit the boy with the belt is

neither proven nor admitted. Williams’s agreement in his guilty plea that the court

could rely on the minutes of evidence for a factual basis does not extend to facts

beyond the charge to which he pled guilty. See State v. Gonzales, 582 N.W.2d

515, 517 (Iowa 1998) (“Where portions of the minutes are not necessary to

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

are otherwise unproved and a sentencing court cannot consider or rely on them.”);

cf. State v. Gordon, 921 N.W.2d 19, 25 (Iowa 2018) (allowing the court to consider

statements made by the defendant to the preparer of presentencing-investigation

report because they were considered admissions). The district court abused its

discretion in considering the unproven fact. See State v. Black, 324 N.W.2d 313,

316 (Iowa 1982) (vacating sentence and remanding for resentencing when record

affirmatively shows court relied on unproven offense).
