                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0400
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL ROBERT HANDT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Annette

Boehlje, District Associate Judge.



      Michael Handt appeals the sentence imposed following his guilty plea to

public intoxication, third or subsequent offense. SENTENCE VACATED AND

REMANDED.




      William T. Morrison of Morrison Law Firm, Mason City, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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DANILSON, Chief Judge.

       Michael Handt appeals from the sentence imposed following his plea of

guilty to public intoxication, third or subsequent offense.

       “[T]he decision of the district court to impose a particular sentence within

the statutory limits 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.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “If a district court

improperly considers unprosecuted and unproven additional charges, we will

remand the case for resentencing.” State v. Washington, 832 N.W.2d 650, 659

(Iowa 2013) (quoting Formaro, 638 N.W.2d at 725).

       Michael Handt pled guilty to public intoxication, third or subsequent

offense.   At the time of sentencing, the prosecutor recommended a term of

incarceration not to exceed two years to be served consecutive to sentences

imposed in Floyd County the day before.1           Handt’s attorney stated Handt’s

conditions “include schizoaffective disorder, alcoholism and then recently the

knee injuries that he sustained including a ruptured tendon in his right knee” for

which he had undergone surgery the week before the sentencing hearing.

Counsel stated Handt “is currently on hydrocodone five milligrams every four

hours which includes 325 milligrams of acetaminophen and also ibuprofen.”

Counsel recommended Handt be assessed a $625 fine and “enter a dual

diagnosis program at his earliest availability.”     The court imposed a term of



1
 There, the court sentenced Handt to two concurrent prison terms not exceeding two
years on two public intoxication charges, which we affirmed in State v. Handt, No. 16-
0428, 2016 WL 6902812 (Iowa Ct. App. Nov. 23, 2016).
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incarceration not to exceed two years, which would be served consecutive to the

sentences imposed in the Floyd County cases.

      On appeal, Handt argues the court considered improper factors.

Specifically, he notes the court’s statements at sentencing:

             Mr. Handt, if you have a mental health disorder and you’re
      taking medication for it, your medication tells you not to drink with it
      because essentially you screw it up or cancel it out by consuming
      alcohol. Your doctor I’m sure has advised you of that. I’m sure
      your pharmacist has advised you of that. I’m fairly certain that it’s
      on your bottle of medication that it’s not to be taken with alcohol,
      but yet you continue to drink and wonder why you’re having issues;
      it’s because your alcohol problem is out of control. And at some
      point we have to take steps to consider community safety and to
      consider frankly your safety when you’re consuming this alcohol
      and appearing in public.

      Handt does indeed have a long history of operating while intoxicated and

public intoxication convictions.   And his attorney stated at sentencing that

Handt’s conditions included schizoaffective disorder and alcoholism. However,

nothing in the record supports the court’s comments concerning Handt taking

medication for a mental health disorder or combining prescription medications

with alcohol consumption.     We therefore vacate the sentence imposed and

remand for resentencing.

      SENTENCE VACATED AND REMANDED.
