                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2154
                            Filed September 10, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VAUGHN DION WHITE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Timothy

O’Grady, Judge.



      A defendant appeals his sentence. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Matthew Wilbur, County Attorney, and Jon Jacobmeier,

Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, P.J.

      Vaughn Dion White pled guilty to escape from custody, in violation of Iowa

Code section 719.4(1) (2013).      At the sentencing hearing, White’s attorney

requested   probation.      The   officer who    prepared White’s presentence

investigation report recommended “appropriate prison time.” The district court

adopted the PSI recommendation and sentenced White to a prison term not

exceeding five years.

      On appeal, White contends the district court (1) considered impermissible

factors in sentencing him and (2) abused its discretion in failing to consider

mitigating circumstances.

      (1) “It is a well-established rule that a sentencing court may not rely upon

additional, unproven, and unprosecuted charges unless the defendant admits to

the charges or there are facts presented to show the defendant committed the

offenses.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).

      The sentencing court began its discussion of the sentence with the cited

admonition, stating “it’s not appropriate that I consider uncharged or unconvicted

matters.” The court next made reference to the presentence investigation report.

The court summarized the contents of the report as follows:

      I see a rather checkered past for a young person like you. You’re
      21, 22 years old and there are a number of entries on here
      including robbery, assault and battery, several are of destruction of
      property kinds of charges. The PSI also recommends a prison
      sentence and I’m going to accept that recommendation based
      primarily on your prior criminal history. . . . I believe I’ve explained
      the reason for my sentence, but primarily, your prior history and
      your just recent release on parole, in fact.
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White points out “[t]he history that the court recited included a robbery charge,

which [he] was not convicted of” and a reference to “‘several’ destruction of

property crimes,” when the PSI showed “only one such conviction.”

       We are convinced the court simply misspoke. The electronically-filed PSI

report, typed in small font, stated White was arrested for robbery, “which was

amended to Attempt of a Class 2 Felony and found guilty.” The court’s omission

of the word “attempt” can only be construed as inadvertent.

       As for the court’s reference to “several” entries for “destruction of property

kind of charges,” the PSI report showed convictions for trespass and criminal

mischief in addition to the conviction for destruction of property. The court was

clearly referring to similar types of convictions rather than the single destruction-

of-property conviction.

       We conclude the sentencing court did not consider impermissible factors

in imposing sentence. See Formaro, 638 N.W.2d at 725-26 (refusing to “draw an

inference of improper sentencing considerations which are not apparent from the

record”); State v. Jose, 636 N.W.2d 38, 41-42 (Iowa 2001) (“When we consider

the court’s statement in context, we think the court considered Jose’s prior

convictions rather than unproven charges in sentencing him to imprisonment.”).

       (2)   Iowa courts have “a duty to consider all the circumstances of a

particular case.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). White

contends “[t]he court did not consider mitigating factors, or the chances of

rehabilitation.” We disagree. The court referred to the presentence investigation

report, which described White’s limited education, learning disabilities, and

association with people who lived “a criminal lifestyle.” While the court did not
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cite these factors, courts have no obligation to “specifically acknowledge each

claim of mitigation urged by a defendant.” Id.

      We conclude the sentencing court considered pertinent factors in

sentencing White. We discern no abuse of discretion in the sentencing decision.

      AFFIRMED.

      Potterfield, J., concurs; McDonald, J., dissents.
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MCDONALD, J. (dissenting)

         I respectfully dissent.   The district court explicitly stated it based its

sentencing decision in part on a robbery conviction when the defendant has not

been convicted of robbery. That is an impermissible sentencing consideration

requiring the defendant’s sentence be vacated and the matter remanded for

resentencing.

         In support of its conclusion the district court did not consider an improper

factor in sentencing the defendant, the majority notes the district court stated “it’s

not appropriate that I consider uncharged or unconvicted matters.”               This

statement is out of context. In context, the district court’s statement was not so

broad.      The prosecutor attempted to interject error into this sentencing

proceeding by explicitly relying on an unproved and unprosecuted attempted

murder charge in support of the State’s recommendation for prison:

         He . . . recently got out on parole . . . and then turned around and
         was arrested for shooting into a car numerous times, which was—
         unfortunately, had to be dismissed because of a lack of . . . witness
         cooperation. We’re asking for prison, Your Honor.

In response to this specific statement, the district court stated, “[I]t’s not

appropriate that I consider uncharged or unconvicted matters and so I’m not

going to consider the statement by the prosecutor that there was some other

charge out there that didn’t happen because witnesses didn’t cooperate.”

(Emphasis added.)       Immediately after making that limited statement of non-

reliance, the district court recited the defendant’s criminal history as “including

robbery, assault and battery, several are of destruction of property kind of

charges.”      The district court then stated it was going to accept the
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recommendation of incarceration “based primarily on your prior criminal history.”

It is not disputed the defendant has never been convicted of robbery.

       The majority concludes the defendant’s sentence nonetheless should be

affirmed because the district court merely misspoke.        The majority finds the

district court intended to say “Attempt of a Class 2 Felony,” the offense for which

the defendant was convicted, when it said “robbery.” That seems a stretch. The

majority supports this finding with an additional finding that the PSI font is small.

How the majority makes this finding without knowing whether the district court

looked at a hard copy of the PSI or a soft copy of the PSI or whether the district

court magnified or “zoomed in” the soft copy of the PSI is an interesting, but

ultimately immaterial, question—all of this is pure speculation. It is equally likely

the district court simply misread the PSI and thought the defendant had been

convicted of robbery.

       I recognize “the sentencing process can be especially demanding and

requires trial judges to detail, usually extemporaneously, the specific reasons for

imposing the sentence.” State v. Thomas, 520 N.W.2d 311, 313–14 (Iowa Ct.

App. 1994).    The performance of this judicial duty can produce unfortunate

phraseology, unintended remarks, misconstrued remarks, and just plain

misstatements.     See id.     Thus, the sentencing decision enjoys a strong

presumption in its favor. See State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).

The presumption is limited; it means only that we will not draw an inference of

improper sentencing considerations not apparent in the record. See State v.

Formaro, 638 N.W.2d 720, 725 (Iowa 2002). The presumption does not go so far

as to negate an instance when the sentencing court explicitly states it is relying
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on an impermissible sentencing consideration. The district court may have made

a misstatement or may have misread the PSI, but neither can be determined

from this record. The only thing that can be determined from this record, without

resort to utter speculation, is the district court explicitly stated it based its

sentencing decision on a prior robbery conviction when the defendant has not

been convicted of robbery.    This requires the sentence be vacated and this

matter remanded for sentencing. See State v. Gonzalez, 582 N.W.2d 515, 516

(Iowa 1998) (noting the general rule a court “may not consider an unproven or

unprosecuted offense when sentencing a defendant”); State v. Cary, No. 13-

0039, 2014 WL 465769, at * 4 (Iowa Ct. App. Feb. 5, 2014) (McDonald, J.,

dissenting).
