                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1879
                             Filed October 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY L. McGHEE Jr.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Ian K. Thornhill,

Judge.



      The defendant appeals his sentence, arguing the district court improperly

considered unproven offenses. AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Robert P.

Ranschau, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and May, JJ.
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POTTERFIELD, Presiding Judge.

       Timothy McGhee Jr. appeals his prison sentence on three counts of theft

in the second degree and one count of theft in the fourth degree.1 McGhee

maintains the sentencing court considered unproven offenses when imposing

sentence; he asks that we remand for resentencing.            We will not reverse a

sentence imposed “absent an abuse of discretion or some defect in the

sentencing procedure.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

       “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.” State v. Witham, 583

N.W.2d 677, 678 (Iowa 1998). “If a court in determining a sentence uses any

improper consideration, resentencing of the defendant is required.”            State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).             That being said, “a district

court’s sentencing decision enjoys a strong presumption in its favor,” so “a

defendant must affirmatively show that the district court relied on improper

evidence such an unproven offenses” in order for us to reverse. State v. Jose,

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

       Here, the district court stated the following prior to declaring the sentence:

              Since being released after his plea, [McGhee] has
       committed further crimes. Again, I know it[’]s common vernacular,
       but the phrase “pick up charges” drives me crazy. You don’t pick


1
  McGhee’s appeal stems from a number of guilty pleas. But because the relevant
judgments and sentences were entered before July 1, 2019, the amended Iowa Code
section 814.6(1)(a)(3) (2019) is not applicable here. See State v. Macke, 933 N.W.2d
226, 228 (Iowa 2019) (“On our review, we hold Iowa Code sections 814.6 and 814.7, as
amended, do not apply to a direct appeal from a judgment and sentence entered before
July 1, 2019.”); see also Iowa Code § 814.6(1)(a)(3) (limiting appeals from guilty pleas
for crimes other than class “A” felonies).
                                        3


      up charges, you commit offenses, and that’s what you’ve done
      here. You did it while you were on release pending this.

      McGhee claims the district court’s reference to “further crimes” shows the

court considered pending charges to which McGhee had neither pled guilty nor

had otherwise been resolved.

      The State responds that the district court did not rely on any unproven

offenses.   The State recognizes the presentence-investigation (PSI) report

contained a number of offenses allegedly committed by McGhee between the

date he pled guilty to the offenses for which he was being sentenced—on May

10, 2018—and the date he was being sentenced—October 17, 2018. Of the

twelve listed alleged offenses, two showed as “dismissed” on the report. The

court noted it had a discussion with the parties prior to going on the record and

the court had been made aware that five of the remaining ten charges were

“being dismissed, either as part of that plea or as part of the resolution of this

matter.” Three remaining cases listed on the PSI report were pending charges

from Jones County, which the court categorically stated it would not consider:

“And, again, those indicate here that they’re pending, so without any sort of

disposition, I wasn’t considering those anyway, but I will make this note for the

record.”

      Of the remaining two charges, one already had a disposition at the time of

the report—a fifth-degree theft charge, for which a $65 fine was imposed on

August 31—and McGhee entered a written guilty plea to the second right before

the sentencing hearing—a second-degree theft charge. The court was free to

consider both of these offenses during sentencing.
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      While disavowing the consideration of unproven offenses or allegations is

not enough to unring the proverbial bell, see State v. Lovell, 857 N.W.2d 241,

243 (Iowa 2014), here the court never specifically indicated it was considering an

offense that was unproven or to which McGhee had not admitted. Without more

than the court’s statement it was considering McGhee’s “further offenses”—of

which there were properly two to consider—McGhee has not met his burden of

affirmatively establishing error. See State v. Washington, 832 N.W.2d 650, 660

(Iowa 2013) (reiterating the need for an “affirmative showing the sentencing court

relied on improper evidence”). We affirm McGhee’s sentence.

      AFFIRMED.
