                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0936
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY MICHAEL SHANAHAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Appanoose County, Rose Anne

Mefford, District Associate Judge.




      Timothy Michael Shanahan appeals his conviction for fraudulent practice.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.




      Steven E. Goodlow, Albia, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      Timothy Michael Shanahan appeals his conviction for fraudulent practice

in the second degree, claiming the district court considered impermissible factors

in sentencing him to prison and his trial attorney was ineffective for failing to

adequately prepare him for the sentencing hearing. We find the district court

impermissibly considered Shanahan’s dismissed charges and remand for

resentencing.   We decline to address Shanahan’s ineffective assistance of

counsel claim on direct appeal.

      On June 23, 2014, Shanahan was charged with fraudulent practice in the

second degree, in violation of Iowa Code sections 714.8(1) and 714.10 (2013).

Shanahan entered into a plea agreement with the State, in which he agreed to

pay restitution in five other pending cases (involving charges of fraudulent

practice and theft) in exchange for the dismissal of those charges. Shanahan

pled guilty to one count of fraudulent practice in the second degree on

February 18, 2015.

      Sentencing was originally set for April 29, but the parties agreed to

reschedule sentencing for June 24 to give Shanahan an opportunity to work with

the “drug task force.” However, Shanahan failed to make contact with the task

force and the State filed a motion to reset the hearing for May 27; the court

granted the motion.

      On May 27, the court sentenced Shanahan to a term of incarceration not

to exceed five years pursuant to the plea agreement. The court also ordered

Shanahan to make restitution for his conviction and the dismissed charges.

Shanahan appeals from this sentence.
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       Shanahan claims the district court erred by considering impermissible

factors (his dismissed charges) when it determined his sentence. “We review

sentencing decisions for abuse of discretion or defect in the sentencing

procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). A district court

may not consider an unproven or unprosecuted offense in sentencing a

defendant unless (1) the facts before the court reveal that the defendant

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

38, 41 (Iowa 2001); see also, e.g., State v. Pankey, No. 02-0918, 2003 WL

558500, at *1 (Iowa Ct. App. Feb. 28, 2003).         If a court uses any improper

consideration in sentencing a defendant, resentencing is required.          State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

       We agree with Shanahan the court impermissibly considered his

dismissed charges. The court stated: “Mr. Shanahan, I’ve selected this particular

sentence for you after considering a number of factors. . . . I considered . . . your

prior criminal record, which is lengthy for similar types of offenses.” (Emphasis

added.) Other than juvenile court adjudications for theft and burglary (which

occurred over twenty-five years ago), Shanahan’s criminal record did not contain

any convictions for offenses similar to fraudulent practice. Cf. Jose, 636 N.W.2d

at 41–43 (holding reference to “additional crimes” did not establish court

considered unproven charges, given defendant’s prior criminal history).         The

facts before the court did not reveal Shanahan committed the dismissed offenses

and Shanahan’s agreement to pay restitution for the dismissed charges is

insufficient to demonstrate an admission of guilt. Therefore we find the district
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court impermissibly considered Shanahan’s dismissed charges in its sentencing

and we remand for resentencing.

      Shanahan also claims his trial counsel was ineffective for failing to

adequately prepare him for the sentencing hearing.          We review claims of

ineffective assistance of counsel de novo. See State v. Finney, 834 N.W.2d 46,

49 (Iowa 2013).    To prevail, Shanahan must show (1) counsel breached an

essential duty and (2) prejudice resulted. See Strickland v. Washington, 466

U.S. 668, 687 (1984). The claim fails if either element is lacking. Anfinson v.

State, 758 N.W.2d 496, 499 (Iowa 2008). Generally, we do not resolve claims of

ineffective assistance of counsel on direct appeal and preserve such claims for

postconviction relief proceedings. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). However, we will address such claims on direct appeal when the record

is sufficient to permit a ruling. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).

We find the record insufficient to address Shanahan’s ineffective assistance of

counsel claim and preserve the claim for a possible postconviction relief

proceeding.

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      Tabor, J., concurs; McDonald, J., dissents.
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MCDONALD, Judge. (dissenting)

       “[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). “In order to

overcome the presumption the district court properly exercised its discretion,

there must be an affirmative showing the court relied on the improper evidence.”

State v. Dake, 545 N.W.2d 895, 897 (Iowa Ct. App.1996). One inappropriate

matter the district court should not consider at sentencing is unproved criminal

conduct, including unprosecuted charges, unproved charges, and dismissed

charges. See State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998) (stating it is

improper for the sentencing court to consider criminal conduct not “otherwise

proved”).

       The defendant has not made an affirmative showing the district court

relied on the dismissed charges in making its sentencing determination. The

defendant assumes the district court’s reference to “similar types of offenses”

refers to the dismissed charges.       As noted by the majority, however, the

defendant does have a history of committing property crimes, which are “similar

types of offenses” to the crime at issue in this case. We should not infer the

district court considered an improper factor if it is not apparent from the record.

See Formaro, 638 N.W.2d at 725.          Our goal is not to second guess the

sentencing decision but to determine if the decision rests on an untenable or

improper ground. See State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015).
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      Even if the district court had considered the dismissed charges in making

its sentencing decision, such consideration would not have been inappropriate in

this case. When a defendant challenges a sentence on the ground the district

court considered unproved criminal conduct, “the issue presented is simply one

of the sufficiency of the record to establish the matters relied on.”    State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).          The sentencing court can

consider those facts that are admitted or that otherwise are established as true.

See id.

      The record in this case is sufficient to establish the matters relied on.

First, during the sentencing hearing, the defendant admitted to the offense

conduct relating to the dismissed charges. He explained he did “every one of

them,” referring to his practice of accepting payment without providing services,

“in a very short time frame.” He explained to the sentencing court that he did not

mean to “hurt anyone in the community by collecting money and not finishing a

job” but he was in financial trouble. Second, a sentencing court is permitted to

consider the contents of a presentence investigation (PSI) in making its

sentencing decision where the defendant does not object to the portion of the

PSI being considered. See State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).

Here, the defendant did not object to the district court relying on the PSI in

making its sentencing determination.     The PSI contained pecuniary damage

statements from the victims of the dismissed charges. Shanahan agreed to pay

restitution to these victims. Inclusion of the pecuniary damage statements in the

PSI is sufficient record to establish the offense conduct underlying the dismissed

charges for the purposes of sentencing. See State v. Kurka, No. 14-0776, 2015
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WL 1332018, at *5-6 (Iowa Ct. App. Mar. 25, 2015) (holding the district court did

not consider unproved conduct where “[a]ttached to the PSI were a number of

exhibits including an investigative report describing the various forms of theft

Kurka committed . . . and a statement of pecuniary damages”); State v. Womack,

No. 08-1865, 2009 WL 1677061, at *3 (Iowa Ct. App. June 17, 2009) (holding the

district court did not improperly consider offense conduct for six dismissed counts

of forgery where the defendant accepted responsibility for offense conduct by

agreeing to pay restitution related to dismissed charges and the restitution

information was contained in presentence investigation).

       Finally, even if the defendant had not explicitly admitted to the offense

conduct underlying the dismissed charges, and even if the offense conduct was

not of record in the PSI, consideration of the dismissed charges would not have

been inappropriate in this case. “There should be a limit as to how far a court

must go in not accepting as true that which all others know to be true.” State v.

Gonzalez, 582 N:W.2d 515, 517 (Iowa 1998) (Carter, J., dissenting). Requiring

the district court to order restitution to victims while at the same time requiring the

district court to pretend the defendant did not engage in criminal conduct with

respect to those victims is beyond the limit. The district court is without authority

to order restitution unless authorized by statute.       See State v. Watson, 795

N.W.2d 94, 95 (Iowa Ct. App. 2011) (“Criminal restitution is a creature of

statute.”). Restitution “means payment of pecuniary damages to a victim . . .”

Iowa Code § 910.1(4).       A “victim” is “a person who has suffered pecuniary

damages as a result of the offender’s criminal activities.” Iowa Code § 910.1(5).

The code defines “criminal activities” to mean “any crime for which there is a plea
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of guilty, verdict of guilty, or special verdict upon which judgment of conviction is

rendered and any other crime . . . which is admitted or not contested by the

offender, whether or not prosecuted.” Iowa Code § 910.1(1). When a criminal

defendant agrees to pay “restitution” to the “victim” of a dismissed charge as part

of a plea agreement, the defendant is admitting or not contesting the defendant

engaged in “criminal activities” giving rise to “pecuniary damages” to a “victim.”

By ordering restitution pursuant to such a plea agreement, the district court,

implicitly or explicitly, must find there was a “victim” of the defendant’s “criminal

activities.” In the absence of such a finding, the district court is without statutory

authority to order restitution for a dismissed charge. See State v. Knudsen, 746

N.W.2d 608, 609 (Iowa Ct. App. 2008) (“To determine if restitution is required in

any given case, the district court must first identify the victim(s) of the defendant's

criminal conduct.”). Therefore, the defendant’s agreement to pay restitution for a

dismissed charge is sufficient proof, as a matter of law, of the criminal conduct

underlying the dismissed charge to be considered for the purposes of

sentencing. See Grandberry, 619 N.W.2d at 401 (“The standard of proof during

the sentencing stage is lower than the standard used during trial.”).

       For these reasons, I respectfully dissent. I would affirm the defendant’s

sentence.
