                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1381
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEFF ALLEN DEVRIES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, DeDra L. Schroeder

(plea/sentencing) and James M. Drew (motion to withdraw plea), Judges.



      A defendant appeals his conviction and sentence. AFFIRMED.



      Roger L. Sutton of Sutton Law Office, Charles City, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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VOGEL, Presiding Judge.

      Jeff DeVries appeals his conviction and sentence following his guilty plea

to indecent contact with a child, in violation of Iowa Code section 709.12(1)(a)

(2013). DeVries claims the district court erred by denying his request to withdraw

his guilty plea and by considering uncharged conduct in sentencing him.

Because we conclude the district court did not abuse its discretion in either

respect, we affirm.

      I.     Background Facts and Proceedings

      On August 21, 2014, the State charged DeVries with ten counts, including

three counts of sexual abuse in the second degree and seven counts of indecent

contact with a child.    On April 3, 2015, the State filed an amended trial

information, which charged DeVries with one count of sexual abuse in the

second degree and one count of indecent contact with a child. On April 20,

DeVries pled guilty to one count of indecent contact with a child as part of a plea

agreement in which the State agreed to dismiss the sexual-abuse count and

make a sentencing recommendation.

      At the plea hearing, DeVries answered “Yes” when asked whether he

touched the victim’s buttocks “with the purpose of arousing or satisfying your

sexual desire or hers.” The court accepted DeVries’s guilty plea and ordered a

presentence investigation (PSI). As part of the PSI, a psychosexual assessment

was performed by a psychologist, and DeVries admitted that he became aroused

after “accidentally” touching the victim’s buttocks and that on a subsequent

occasion he fondled the victim over her clothing. DeVries also said the victim

“was a good little story teller” and the situation had been “blown out of
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proportion.” When discussing the incident with the preparer of the PSI report,

DeVries denied that he touched the victim for the purpose of sexual arousal,

claimed the information in the minutes of testimony was untrue, said he told the

psychologist that he was aroused by the touching because he did not think the

psychologist wanted to hear the truth, and accused the victim of lying. The PSI

report noted that DeVries may be a good candidate for probation because he had

no prior criminal record and could maintain employment and a stable residence.

However, based on the nature of the crime, DeVries’s “complete lack of remorse

for the victim, and his denial of responsibility for his behavior in this case,” the

reporter opined DeVries “would not be successful in sex offender treatment in the

community and/or following the conditions of sex offender probation supervision.”

Therefore, he recommended that DeVries be sentenced to two years of

incarceration.

      On the date initially set for sentencing, a dispute arose between DeVries

and the State over whether the State had agreed to recommend a suspended

sentence or follow the recommendation from the PSI report. DeVries also took

issue with some of the information in the PSI report; the court continued

sentencing until a hearing could be reported. DeVries filed a motion to withdraw

his plea claiming, “Defendant’s attorney did not hear the Judge state that the

State was going to follow the recommendations of the presentence investigation

report.” DeVries also asserted the plea now lacked a factual basis and the PSI

report contained uncharged conduct. The district court reviewed the record from

the plea hearing, determined DeVries had a full understanding of the agreement

before entering his plea, and denied DeVries’s motion to withdraw his guilty plea.
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      A sentencing hearing was held on August 10. DeVries raised concerns

about information contained in the PSI that described conduct that he did not

admit to as part of his guilty plea. After a discussion on the record, all parties

agreed the court “should only be considering admissions [DeVries] made during

guilty plea proceedings or admissions he made to the Presentence Investigation

Report preparer or the Psychosexual Report Preparer” related to the charged

conduct. Both the State and DeVries agreed to proceed with sentencing with the

court stating on the record that it was not considering the uncharged conduct

discussed in the PSI report. In pronouncing sentence, the court stated that it

went through the PSI report and “basically blocked out the areas that did not

conform to the factual basis that were given initially.”    The court then noted

DeVries’s age, criminal history, employment history, the nature of the offense,

and DeVries’s prospects for rehabilitation. The court discussed its concern about

DeVries’s options for treatment and rehabilitation outside of prison based on the

inconsistencies in the PSI report relating to the charged conduct and the best

way to protect society.     The court then sentenced DeVries to a term of

imprisonment not to exceed two years. DeVries appeals.

      II.     Standard of Review

      “We review a trial court’s decision to grant or deny a request to withdraw a

guilty plea for abuse of discretion.” State v. Speed, 573 N.W.2d 594, 596 (Iowa

1998). A court abuses its discretion when the court exercises it “on grounds or

for reasons clearly untenable or to an extent clearly unreasonable.” Id. (citations

omitted).
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      When a sentence falls within statutory limits, the sentence is reviewed for

abuse of discretion.    State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015).        “A

district court may not consider an unproven or unprosecuted offense when

sentencing a defendant unless (1) the facts before the court show the defendant

committed the offense, or (2) the defendant admits it.” State v. Jose, 636 N.W.2d

38, 41 (Iowa 2001).

      III.    Motion to Withdraw Guilty Plea

      DeVries asserts the court erred in denying his motion to withdraw his

guilty plea because the PSI report contained discussion of conduct he had not

admitted to as part of his plea. The State counters DeVries was fully aware of

the consequences of his plea at the time he entered it.

      A motion to withdraw a guilty plea will not be granted “where ‘a defendant,

with full knowledge of the charge against him and of his rights and the

consequences of a plea of guilty, enters such a plea understandably and without

fear or persuasion.’”    State v. Ramirez, 400 N.W.2d 586, 588 (Iowa 1987)

(quoting State v. Weckman, 180 N.W.2d 434, 436 (Iowa 1970)). Iowa Rule of

Criminal Procedure 2.8(2)(b) provides:

      Before accepting a plea of guilty, the court must address the
      defendant personally in open court and inform the defendant of,
      and determine that the defendant understands, the following:
              (1) The nature of the charge to which the plea is offered.
              (2) The mandatory minimum punishment, if any, and the
      maximum possible punishment provided by the statute defining the
      offense to which the plea is offered.
              (3) That a criminal conviction, deferred judgment, or deferred
      sentence may affect a defendant’s status under federal immigration
      laws.
              (4) That the defendant has the right to be tried by a jury, and
      at trial has the right to assistance of counsel, the right to confront
      and cross-examine witnesses against the defendant, the right not to
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       be compelled to incriminate oneself, and the right to present
       witnesses in the defendant’s own behalf and to have compulsory
       process in securing their attendance.
              (5) That if the defendant pleads guilty there will not be a
       further trial of any kind, so that by pleading guilty the defendant
       waives the right to a trial.

       Our review of the record indicates the trial court complied with the

requirements of rule 2.8(2)(b) in accepting DeVries’s plea and DeVries plainly

and unequivocally stated that he understood the rights and consequences of his

guilty plea. In addressing DeVries’s motion to withdraw his guilty plea, the court

reviewed the plea hearing colloquy and determined DeVries entered his plea

knowingly and voluntarily and the hearing complied with rule 2.8. As our review

reached the same conclusion, we cannot say the court abused its discretion in

denying DeVries’s motion. We also agree with the district court that DeVries’s

unhappiness with the information offered in his PSI report does not affect his

understanding of his guilty plea when he entered it and is not an adequate

reason for withdrawing his guilty plea. See id. We affirm the denial of DeVries’s

motion to withdraw his guilty plea.

       IV.     Sentencing Considerations

       DeVries claims the district court abused its discretion by considering

information contained in the PSI report that was uncharged and distinct from the

factual basis of his guilty plea.

       When exercising its discretion in determining a proper sentence, the court

should consider several factors, “including the nature of the offense, the

attending circumstances, defendant’s age, character and propensities and

chances of his reform.” State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979).
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In evaluating these factors, the court should strive to order a sentence that “will

provide maximum opportunity for the rehabilitation of the defendant, and for the

protection of the community from further offenses by the defendant and others.”

Iowa Code § 901.5.

       The record reflects the district court did not consider the conduct

contained in the PSI that was separate from the conduct DeVries admitted to as

part of his guilty plea. The parties and the court discussed the issue at length at

the sentencing hearing and agreed that the court should not and would not

consider the uncharged conduct in determining an appropriate sentence. When

pronouncing sentence, the district court stated it did not consider the charges

and had “basically blocked out the areas that did not conform to the factual basis

that were given initially.” The court discussed at length DeVries’s age, criminal

record, employment history, the nature of the offense, possibility of rehabilitation,

and community-safety concerns in fashioning sentence. Although the court was

concerned about the inconsistencies between DeVries’s plea colloquy, his

statements to the psychologist, and his statements to the author of the PSI, that

concern was directed towards the court’s assessment of DeVries’s chances of

successful rehabilitation.   Thus, the concern was correlated to the actual

sentencing factors appropriately utilized.     On our review of the record, we

conclude the district court did not abuse its discretion in sentencing DeVries.
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      V.      Conclusion

      Because we conclude the district court did not abuse its discretion in

denying DeVries’s motion to withdraw his guilty plea nor in sentencing DeVries,

we affirm his conviction and sentence.

      AFFIRMED.
