                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0577
                            Filed December 19, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW GENE SPAANS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Sioux County, Tod J. Deck, Judge.



      A criminal defendant appeals his sentence after pleading guilty to four

counts of child endangerment. SENTENCES VACATED AND REMANDED FOR

RESENTENCING.




      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.




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

       Matthew Spaans appeals his sentence after pleading guilty to four counts

of child endangerment. He contends he received ineffective assistance of counsel

when his plea counsel failed to object to the State’s alleged breach of the plea

agreement. He also contends the district court considered improper factors during

sentencing. Spaans lastly challenges a portion of the sentencing order related to

appellate attorney fees.      We conclude an improper sentencing factor was

considered, and accordingly, we vacate the defendant’s sentences and remand

for resentencing.

       I. Background Facts and Proceedings.

       On February 27, 2017, Spaans was charged with seven counts of child

endangerment and seven counts of assault causing bodily injury or mental illness.

The State amended the trial information multiple times, and the number and nature

of charges against Spaans increased. Ultimately, Spaans reached an agreement

to plead guilty to four counts of child endangerment, in violation of Iowa Code

sections 726.6(1)(a), (c) and 726.6(7) (2017). Section 726.6(1)(b) was also cited

in the trial information, but there were no averments in the trial information

supporting a violation of this alternative.

       On February 20, 2018, Spaans filed a written guilty plea, and the parties

filed a written plea agreement.      The written guilty plea did not list the code

provisions to which Spaans was pleading guilty, nor did it go into detail of the

factual basis for his guilty plea. However, the written plea agreement did recite the

language used in code provisions. The written plea agreement simply stated, “As

a parent, guardian, or person having custody or control over a child under the age
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of [fourteen], I did knowingly act in a manner that created a substantial risk to a

child’s physical, mental, or emotional health or safety.”

       In his written guilty plea, Spaans agreed “that the court may review and rely

upon the minutes of testimony as additional factual support for my guilty plea.”

However, during the plea colloquy, the court inquired concerning the use of the

minutes of testimony, and Spaans’s counsel clarified the court could not consider

the allegations in the minutes of testimony concerning any physical injuries to the

children, as the pleas did not encompass that element.

       The   parties   agreed     each   would    make      their   own   sentencing

recommendations. The State would recommend “a total indeterminate term not to

exceed four (4) years; or in the alternative, a jail term to be determined by the

court” and a suspended fine. Prior to sentencing, the State filed a sentencing

memorandum, which included the facts the State thought supported the guilty plea

and included photographs showing the children victims’ injuries. Both children filed

victim impact statements.

       At the April 2, 2018 sentencing hearing, the court asked the State to

summarize the parties’ agreement. Spaans and his counsel agreed they had the

same understanding of the parties’ plea agreement as the State’s summary. The

terms recited were consistent with the written plea agreement. Spaans was asked

whether he objected to the State’s most recent amendment to the trial

information—which was made to match the code sections to the plea agreement

and correct an incorrect date range—and Spaans’s counsel answered “no.”

       During the hearing, the State argued the following in support of its

recommended sentence:
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       I would just note that there were multiple instances of physical abuse
       that occurred over a period of 2.5 years, so the nature of the offense
       is ongoing. The children received injuries. The children were then
       told fabricated narratives to explain those injuries to very suspicious
       school staff and social workers. And, lastly, that there were multiple
       victims in this matter.

The State also emphasized Spaans’s lack of remorse. Spaans entered several

exhibits, including a progress report concerning his mental health counseling,

letters of support, and a certificate of completion of anger management training.

Spaans requested deferred judgments.

       The district court accepted Spaans’s guilty plea and sentenced him in

accordance with the State’s recommendation. Spaans appeals.

II. Scope and Standard of Review.

       We review plea and sentencing issues for correction of legal error. See

Iowa R. App. P. 6.907; State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). “[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).

III. Discussion.

       We choose to first address Spaans’s contention that the district court relied

on improper factors in rendering his sentence. Specifically, Spaans asserts the

court should not have considered that Spaans caused injuries to the children, the

photographs of the children’s injuries, or that Spaans had forced or coerced the

children into lying about the abuse.
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       We will not vacate a sentence on appeal “unless the defendant

demonstrates an abuse of trial court 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). The fact that the court is merely

aware of an alleged improper factor is not sufficient to overcome the presumption

the court properly exercised its discretion. State v. Ashley, 462 N.W.2d 279, 282–

83 (Iowa 1990). In order to overcome the presumption the court properly exercised

its discretion, there must be an affirmative showing the court relied on the improper

factors. See State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).

       However, “[i]f a court in determining a sentence uses any improper

consideration, resentencing of the defendant is required,” even if it was “merely a

‘secondary consideration.’” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000)

(quoting State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981)).              Information

contained in the minutes of testimony is not a permissible sentencing consideration

if unproved. State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014). “The sentencing

court should only consider those facts contained in the minutes [of testimony] that

are admitted to or otherwise established as true.” State v. Black, 324 N.W.2d 313,

316 (Iowa 1982); see also State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998)

(“Where portions of the minutes [of testimony] 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.”).

       The information contained in the State’s sentencing memorandum,

including the photographs, were also contained within the minutes of testimony.

Here, the task of determining which portions of the minutes of testimony are
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necessary to establish a factual basis for the plea is complicated somewhat by the

lack of details contained within the written guilty plea. Spaans agreed in his written

plea that the court could review and rely upon the minutes of testimony as

additional factual support for his guilty plea, but the only factual admissions in the

plea itself were that Spaans had custody or control of a child under the age of

fourteen and “knowingly act[ed] in a manner that created a substantial risk to a

child’s physical, mental, or emotional health or safety”—the plea does not explain

how Spaans acted in such a manner.

       During the sentencing hearing, the court asked Spaans’s counsel to clarify

what information it could consider from the minutes of testimony, and counsel

responded, “[The parents] are not pleading guilty to inflicting bodily injuries on the

kids.” Spaans’s counsel added,

       The court cannot rely on the allegations of the definition of bodily
       injury. It’s child endangerment. That is what the court should focus
       on, and that is why I provided this so that the court can see the
       context, okay?        What they are pleading guilty to is child
       endangerment, but not all of these allegations of infliction of bodily
       injury.

       After argument and allocution, the court took a short recess, and upon

reconvening the court said the following:

              The court is a little conflicted about what sentences to enter in
       this case, and the reason for that is because of sort of the dichotomy
       between everything that’s contained in the minutes of testimony as
       to what happened to these children and the relative leniency, so to
       speak, of the charges to which the actual pleas of guilty have been
       made in this case. The court can only sentence you for what you’ve
       been convicted of.
              The court has considered the vulnerability of the victims in this
       case, has considered the ongoing nature of the allegations, the fact
       that there were multiple victims and multiple offenses, the fact that
       there was apparently some attempt, ongoing, to cover up what was
                                           7


       happening, and that the parties took part in that and also involved
       these children in that behavior. That’s very concerning.
               ....
               As the court stated, in addition to the other factors, the court
       will describe specifically as it relates to consecutive sentences, the
       court has considered the vulnerability of the victims, the fact that
       there are multiple victims and multiple offenses over an ongoing
       period of time, and that to some extent the victims themselves were
       made accomplices to the crimes of which they were the victims. The
       court finds that particularly concerning.

During the imposition of the sentence upon Spaans, the court also said the

following:

              Mr. Spaans, in looking at the photographs in the State’s
       sentencing memorandum and considering the information in the
       minutes of testimony that you told me I could when you signed your
       written plea of guilty and waiver of rights, I can’t see any reason to
       suspend your sentence. And if any of those injuries were caused
       [by] your hand, the sentence should have been more severe.

       To determine if an improper sentencing factor was considered, we must

determine what valid pleas were accepted. Section 726.6(a), (b), and (c) provide

three alternative ways to commit child endangerment, an aggravated

misdemeanor. Iowa Code 726.6(1) defines these alternatives as follows:

               (1) A person who is the parent, guardian, or person having
       custody or control over a child or a minor under the age of eighteen
       with a mental or physical disability, or a person who is a member of
       the household in which a child or such a minor resides, commits child
       endangerment when the person does any of the following:
               (a) Knowingly acts in a manner that creates a substantial risk
       to a child or minor's physical, mental or emotional health or safety.
               (b) By an intentional act or series of intentional acts, uses
       unreasonable force, torture or cruelty that results in bodily injury, or
       that is intended to cause serious injury.
               (c) By an intentional act or series of intentional acts, evidences
       unreasonable force, torture or cruelty which causes substantial
       mental or emotional harm to a child or minor.

       Here, Spaans’s counsel clearly indicated Spaans was not entering a plea

of guilty involving the allegation that he inflicted bodily injuries to the children. As
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previously noted, the written guilty plea did not refer to the specific code sections

to which Spaans was pleading guilty—it references only Counts I, II, III, and IV of

the trial information and refers to the charges as aggravated misdemeanors. Here

lies the difficulty. Originally, Spaans was charged with seven counts of child

endangerment, all class “D” felonies, along with seven counts of an aggravated-

misdemeanor assault.      On February 20, 2018, a motion to amend the trial

information was filed to charge only four counts of child endangerment, all

aggravated misdemeanors, citing only two of the three alternatives, section

726.6(1)(a) and (c). On the same date, Spaans filed his written guilty plea and the

written plea agreement was also filed. However, in the written plea agreement

there was again a reference to the alternative recited in section 726.6(1)(b).

       During the plea colloquy there was no mention of the statutes or alternatives

by the State or Spaans’s counsel, except defense counsel’s statement that Spaans

was not pleading guilty to the alternative concerning bodily injury. Subsequently,

and a few days before the hearing accepting the pleas and imposing sentences,

the State filed another motion to amend, and the motion stated in part, “Such

amendment matches code sections contained within the Plea Agreement and

corrects an incorrect date range previously listed in Count IV on the Amended

Information filed on February 20, 2018.”         This motion was granted without

resistance during the plea colloquy. However, each of the four counts only avers

acts that would constitute child endangerment under the first and third alternatives

under section 726.6(1)(a) and (c) and does not assert any allegations that would

constitute a violation of section 726.6(1)(b).
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       A review of section 726.6(1)(b) reflects that this alternative can actually be

committed in two manners, either by committing an act described in the statute

that “results in bodily injury,” or by committing an act that was “intended to cause

serious injury.” As we have noted, Spaans counsel stated before the pleas were

accepted that the pleas were not tendered on the basis of commission of the bodily

injuries.   Moreover, our record lacks any averments in the amended trial

information filed March 28, 2018, or clear admissions by Spaans of a violation of

section 726.6(1)(b). Thus, we can only conclude the pleas were tendered and

accepted pursuant to the alternatives in section 726.6(1)(a) and (c). Because

neither of these two alternatives include the element of bodily injury, the

information in the minutes of testimony relative to bodily injuries suffered by the

children, which were unproved and not admitted, were an impermissible

sentencing consideration. See Lovell, 857 N.W.2d at 243.

       The district court’s reference to the injuries during the imposition of the

sentences requires us to vacate the defendant’s sentences and remand the case

to the district court for resentencing before a different judge consistent with this

opinion. Because of resolution of this issue, we find it unnecessary to address

Spaans’s remaining issues.

IV. Conclusion.

       Because we conclude the district court relied upon an improper factor during

sentencing, we vacate the defendant’s sentences and remand for resentencing.

       SENTENCES VACATED AND REMANDED FOR RESENTENCING.
