                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1817
                               Filed June 11, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES WILLIE JENNINGS JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers,

District Associate Judge.



       James Jennings appeals from the sentence imposed following his guilty

plea to second-offense domestic abuse assault causing bodily injury.

AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Patrick Chambers, County Attorney, and Jon Beaty, Assistant County

Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.

      James Jennings pled guilty to second-offense domestic abuse assault

causing bodily injury. The district court sentenced him to a term of imprisonment

not exceeding two years. On appeal, Jennings contends the sentencing court

(1) “improperly considered the unproven and unadmitted allegation that Jennings

‘fled from the cops’” after the assault and (2) “abused its discretion by imposing

rather than suspending the sentence of incarceration.”

I.    “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. Gonzalez, 582

N.W.2d 515, 516 (Iowa 1998).

      At the sentencing hearing, the prosecutor recommended that Jennings be

placed on probation and be sent to a halfway house, a sentence that was

consistent with a sentence for a drug-related crime imposed in another county.

Jennings’ attorney similarly sought to have the prison term suspended.

      Before pronouncing sentence, the district court distinguished the domestic

abuse crime with the drug-related crime in the other county, as follows:

      Well, [this crime is] also [a] largely different charge, correct me if I’m
      wrong, he was just sentenced down in Story County for a
      substance abuse related charge, so it would make sense that
      maybe that sentencing judge determined that halfway house and
      substance abuse treatment would be appropriate whereas here we
      have a domestic abuse where he punched his wife or girlfriend in
      the face causing her to bleed and then fled from the cops.

(Emphasis added).

      Jennings asserts that the court’s last four words—“fled from the cops”—

referred to an unproven charge because “fleeing from law enforcement is not an
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element of [second-offense domestic abuse assault].”        He concedes that the

minutes of testimony made reference to his flight but notes that he “did not plead

guilty to the separate interference with official acts charge” that was predicated

on his flight and that charge was eventually dismissed.

       Jennings is correct that flight is not an element of the domestic assault

charge to which he pled guilty and the charge to which his flight related was

dismissed. Jennings is incorrect that the district court considered his flight in

sentencing him. The court mentioned this fact in the context of distinguishing the

domestic abuse assault charge from the drug charge in Story County. Just after

making the reference, the judge reiterated his key concern: “[T]here’s a

difference between a drug charge and a domestic assault.” The court’s focus

was not on the fact that Jennings fled the scene but on the violence inherent in

the domestic assault crime relative to the drug crime. This distinction became

clear when the court pronounced sentence.         After committing Jennings to a

prison term, the court stated:

              The question was raised that begs the question why, if I do
       something different than was done on your Class C felony case in
       Story County, Mr. Jennings, and the difference is that this is not a
       substance abuse related offense, which is what you were
       sentenced for in Story County and you have an extensive
       substance abuse criminal history and so if that’s what the
       sentencing judge did there, that would be certainly within his
       discretion and I’m not second guessing that in any way, shape, or
       form. I don’t know what information he had available to him, but I’m
       sure he did what he thought was appropriate under the
       circumstances. That is not the case here. We have a crime of
       violence against a domestic partner, this is not your first time doing
       that. It’s your second time doing that. It’s a second domestic and
       you also had a recent assault back in 2013, which is also a crime of
       violence coupled with the incredibly extensive criminal history that
       you’ve had over the last 23 years, which involves commission of a
       Class C felony in 2013, an assault in 2013, a prior domestic
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       assault, and a serious assault here. Under the circumstances, I
       don’t view this at all as second guessing what the District Court did
       in your Story County case, since this is a completely different type
       of crime and involves a crime of violence against another human
       being and under all those circumstances, after taking into account
       your criminal history, your age, your employment circumstances,
       any other facts and circumstances made known to me, I believe
       this to be the appropriate disposition of your case. I do believe this
       sentence provides for your rehabilitation and the protection of the
       community.       I have taken into account the sentencing
       recommendations of the parties, but believe this to be a more
       appropriate disposition of your case.

We conclude the court did not consider the unproven, dismissed charge or the

fact of Jennings’s flight.

II.    Jennings next contends the district court abused its discretion in

sentencing him to prison. See State Formaro, 638 N.W.2d 720, 725 (Iowa 2002)

(setting forth standard of review). He notes that most of his convictions “were

quite old.” He also asserts that placement in a residential correctional facility

“would have permitted [him] to properly address the substance abuse issues.”

       The district court cogently explained why Jennings’ recent criminal history

was relevant to the sentencing decision and why Jennings’s assaultive conduct

warranted a prison term.      We conclude the district court did not abuse its

discretion in sentencing Jennings to prison.

       We affirm Jennings’s judgment and sentence.

       AFFIRMED.
