                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0476
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CURTIS JACK ALFORD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge.



      Curtis Alford appeals the sentence imposed following his Alford plea.

SENTENCE VACATED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

I. Background Facts and Proceedings.

       On November 15, 2015, Curtis Alford drove his Chevy Tahoe into a Ford

F-150 carrying the three complaining witnesses. The F-150 was pushed out of

the intersection onto a yard of an adjacent home and rolled, landing on the

driver’s side. Alford fled the scene on foot.

       After the F-150 was rolled back onto its wheels, two of the complaining

witnesses were able to exit the vehicle by themselves. The third complaining

witness had to be extricated from the vehicle. Two of the Ford F-150 occupants

were transported to the hospital for treatment.

       Police officers arrived and eventually located Alford. Officers instructed

him to stop and lie down on the ground, and he complied. Alford’s face was

bleeding, and he had multiple cuts on his arm.           He was transported to the

hospital for treatment. While there, urine samples were obtained and sent off for

blood-alcohol content (BAC) testing. The results later indicated a BAC of .065.

       The State charged Alford with leaving the scene of an injury accident, in

violation of Iowa Code section 321.261(2) (2015), along with other charges.

Alford entered a written guilty plea pursuant to North Carolina v. Alford,1

acknowledging “strong evidence of his guilt” and agreeing the court “may

consider statements of counsel, the minutes of testimony and police reports.”

After accepting the Alford plea February 12, 2016, the court scheduled

sentencing for March 11.         Alford waived the reporting of the sentencing

1
   See 400 U.S. 25, 37 (1970) (“An individual accused of crime may voluntarily,
knowingly, and understandingly consent to the imposition of a prison sentence even if he
is unwilling or unable to admit his participation in the acts constituting the crime.”).
                                             3


proceeding. The court sentenced Alford to one year in jail with all but forty-five

days suspended. He was also placed on two years’ probation.

       Alford appeals.

II. Standard of Review.

       Our review of the district court’s sentencing decision is for an abuse of

discretion. See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). “In applying

discretion, the court ‘should weigh and consider all pertinent matters in

determining proper sentence, including the nature of the offense, the attending

circumstances, defendant’s age, character and propensities and chances of his

reform. . . . The punishment should fit both the crime and the individual.’” State

v. August, 589 N.W.2d 740, 744 (Iowa 1999) (citations omitted). Additionally,

when the district court imposes a sentence within the statutory limit, the sentence

is “cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002).

       The court abuses its discretion when its decision is based on “clearly

untenable”   grounds     or   the   extent       of   discretion   exercised   is   “clearly

unreasonable.”    Hill, 878 N.W.2d at 272.            A court’s sentencing rationale is

“untenable when it is not supported by substantial evidence or when it is based

on an erroneous application of the law.” Id. Iowa Rule of Criminal Procedure

2.23(3)(d) requires the district court to provide “at least a cursory explanation” for

the sentence imposed to allow for appellate review of its exercise of discretion.

See State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). “[I]f the defendant

waives reporting of the sentencing hearing and the court fails to state its reasons

for the sentence in the written sentencing order, the court has abused its
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discretion . . . .”      State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014).

Additionally, “[a] sentence will not be upset on appellate review unless the

defendant demonstrates an abuse of discretion or a defect in the sentencing

procedure such as the trial court’s consideration of impermissible factors.” State

v. Witham, 583 N.W.2d 677, 678 (Iowa 1998) (citing State v. Wright, 340 N.W.2d

590, 592 (Iowa 1983)).

III. Discussion.

         On appeal, Alford contends the district court abused its discretion by

improperly considering Alford’s alcohol use as an aggravating factor in imposing

judgment and sentencing. He argues that because the record does not support

that he was legally intoxicated, admitted to intoxication, or convicted of operating

while intoxicated, the court could not consider that factor at sentencing.       He

urges us to vacate his sentence and remand for resentencing.

         Although Alford was initially charged with multiple counts,2 he entered a

plea deal with the State in which he agreed to enter an Alford plea to the leaving-

the-scene-of-an-injury-accident charge. The remaining charge was dismissed

with the agreement Alford would pay restitution. Alford’s consumption of alcohol

was never prosecuted nor was he convicted of any crime related to intoxication.

         In its sentencing order, the district court stated:

         Due to the seriousness of the accident and the fact that alcohol was
         involved, the court finds that a period of jail time is appropriate.
         Defendant’s criminal history and the fact that his license was
         suspended at the time of the accident are important factors in the
         court’s sentence.



2
    The other charge appears to be an unrelated third-degree theft charge.
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       While the interaction between Alford and the officers and the results of

Alford’s blood-alcohol test were described in detail in the minutes of testimony,

Alford never admitted to any alcohol-related offenses and the State did not prove

they occurred. See Witham, 583 N.W.2d at 678 (“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.”).   “We have approved using the minutes to establish a

factual basis for the charge to which the defendant pleads guilty.” State v. Black,

324 N.W.2d 313, 316 (Iowa 1982). “The sentencing court should only consider

those facts contained in the minutes that are admitted to or otherwise established

as true.” State v. Gonzales, 582 N.W.2d 515, 516 (Iowa 1998). The State urges

us to find the district court did not abuse its discretion because Alford entered

into an Alford plea rather than admitting to any specific factual basis for his guilty

plea and additionally because there was “substantial evidence in the record that

alcohol was a factor in the accident.” We disagree, and we find the district court

should not have considered Alford’s alcohol consumption as a factor at

sentencing.

       Because “we cannot speculate about the weight the trial court mentally

assigned” the unproven facts, or “whether it tipped the scales to imprisonment,”

we vacate Alford’s sentence and remand for sentencing. See State v. Messer,

306 N.W.2d 731, 733 (Iowa 1981).

       SENTENCE VACATED AND REMANDED.
