                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0232
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AMBER RAE RUTHERFORD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Delaware County, Andrea J. Dryer,

Judge.



      The defendant appeals from the district court’s sentencing order.

SENTENCES VACATED IN PART AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., McDonald, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BLANE, Senior Judge.

       On May 26, 2013, Amber Rutherford left a campsite at Backbone State

Park with four children in her vehicle: her three children, K.R., G.R., and A.R.;

and K.R.’s friend, C.E. No one in the vehicle was wearing a seatbelt. Rutherford

was driving at approximately ninety miles per hour when she failed to complete a

turn and crashed into a steep ditch. The vehicle was found resting on its top.

Rutherford and one of her children were ejected from the vehicle. Her two other

children suffered serious injuries. C.E. died as a result of the crash.

       Following the incident, Rutherford confirmed she had been drinking.

Testing of Rutherford revealed the presence of methamphetamine and

benzodiazepines in her system. Her blood alcohol level was .168.

       On October 18, 2013, Rutherford was charged with five counts: (I)

homicide by vehicle, in violation of Iowa Code section 707.6A(1) (2013); (II) child

endangerment resulting in death, in violation of sections 702.5 and 726.6(1)(a),

(g), and (4); and (III-V) three additional counts of child endangerment, in violation

of sections 702.5, 726.1(1)(a), (g), and (5).

       Rutherford agreed to enter a guilty plea to two lesser-included offenses as

to counts I and II and to counts III, IV, and V as charged.         Rutherford was

sentenced on January 12, 2016. The court ordered the sentences on counts I

and II to run concurrently. The court ordered the sentences on counts III, IV, and

V to run concurrently. The court, however, ordered the combined I-II sentences

and the combined III-V sentences to run consecutively. The court explained its

reasoning as follows:
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               Counts I and II concern the same victim. They will be served
        concurrently. Counts III, IV, and V concern your own children.
        Counts III, IV, and V will be served concurrently.
               The sentences for Counts I and II will be served consecutive
        to the sentences for Counts III, IV, and V for a total term of not to
        exceed twenty years in prison.

        The court’s sentencing order contained no additional information pertinent

to its rationale for imposing concurrent or consecutive sentences. Rutherford

now appeals. On appeal, she claims the district court erred by failing to provide

specific reasons for ordering the sentences to run consecutively, that it

considered and relied on impermissible factors when rendering her sentence,

and that her counsel provided ineffective assistance by failing to object to the

prosecutor’s improper arguments at sentencing and by failing to ensure the court

did not consider those impermissible factors.

   I.      Consecutive Sentences

        The court reviews claims the district court failed to adequately state

reasons for the sentence imposed for an abuse of discretion. State v. Oliver, 588

N.W.2d 412, 414 (Iowa 1998). An abuse of discretion occurs when the court

“acts on grounds clearly untenable or to an extent clearly unreasonable.” Id.

        Iowa Rule of Criminal Procedure 2.23(3)(d) requires the sentencing court

to “state on the record its reason for selecting the particular sentence.” The

district court’s obligation to state reasons for the sentence includes an obligation

to “give reasons for its decision to impose consecutive sentences.” State v.

Jacobs, 607 N.W.2d 679, 690 (Iowa 2000) (citations omitted); State v. Estlund,

No. 15-1151, 2016 WL 1359056, at *2 (Iowa Ct. App. Apr. 6, 2016) (“The duty of

the sentencing court to provide an explanation for a sentence includes the
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reasons for imposing consecutive sentences.”). The purpose of requiring the

sentencing court to state its reasoning on the record is twofold. See State v. Hill,

878 N.W.2d 269, 274 (Iowa 2016). First, it “ensures defendants are well aware

of the consequences of their criminal actions.”       Id.   In addition, and more

important, the requirement provides appellate courts with “the opportunity to

review the discretion of the sentencing court.” Id.

       To satisfy Iowa Rule of Criminal Procedure 2.23(3)(d), the sentencing

court must orally state the reasons for sentencing at a reported hearing or place

the reasons in a written sentencing order. State v. Thompson, 856 N.W.2d 915,

919 (Iowa 2014). Although the explanation does not need to be detailed, the

court must provide at least a cursory explanation to allow appellate review of the

district court’s discretionary action. State v. Thacker, 862 N.W.2d 402, 408 (Iowa

2015) (“[A] ‘terse and succinct’ statement may be sufficient, ‘so long as the

brevity of the court’s statement does not prevent review of the trial court’s

sentencing discretion.’” (citation omitted)).   In Hill, the Iowa Supreme Court

overruled its previous decisions in State v. Hennings, 791 N.W.2d 828 (Iowa

2010), and State v. Johnson, 445 N.W.2d 337 (Iowa 1989), insofar as those

decisions allowed appellate courts to infer the district court’s stated reasons for

its sentence also applied to the district court’s decision to run the sentences

consecutively as part of an “overall sentencing plan.”       878 N.W.2d at 275.

Rather, the supreme court stated: “Sentencing courts should explicitly state the

reasons for imposing a consecutive sentence, although in doing so the court may

rely on the same reasons for imposing a sentence of incarceration.” Id.
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         Prior to the statements in the above-cited excerpt, the district court gave

several reasons for imposing a sentence. However, the record discloses no

explicit reason why it distinguished between concurrent and consecutive

sentences and chose to impose this sentence. See State v. Jacobs, 607 N.W.2d

679, 690 (Iowa 2000) (noting district court “provided sufficient reasons to support

its decision to impose a term of incarceration” but failed to “provide reasons for

its decision to impose consecutive sentences”). “A terse and succinct statement

is sufficient . . . only when the reasons for the exercise of discretion are obvious

in light of the statement and the record before the court.” Thacker, 862 N.W.2d

at 408; see State v. Victor, 310 N.W.2d 201, 205 (Iowa 1981) (noting it was “clear

from the trial court’s statement exactly what motivated and prompted the

sentence”). Without obvious reasons before us, we find it appropriate to remand

this matter to the district court for limited resentencing to determine whether the

sentences should run consecutively or concurrently and provide reasons for its

decision. See State v. Jason, 779 N.W.2d 66, 77 (Iowa Ct. App. 2009).

   II.      Impermissible Factors

         Rutherford next argues the district court considered and relied on

impermissible factors when rendering her sentence. Our review of sentencing

claims is generally for correction of errors at law. See State v. Formaro, 638

N.W.2d 720, 724 (Iowa 2002). “[T]he decision of the 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.” Id. at 724–25.
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         During sentencing, a court may not consider facts, allegations, or offenses

that are not established by the evidence or admitted by the defendant. State v.

Witham, 583 N.W.2d 677, 678 (Iowa 1998). To do otherwise may amount to

improper sentencing. See State v. Black, 324 N.W.2d 313, 315–17 (Iowa 1982).

To merit reversal, the defendant must establish not just that the court was

“merely aware” of the improper sentencing factors but that the court “relied” on

them in imposing sentence. See State v. Ashley, 462 N.W.2d 279, 282 (Iowa

1990).     As the reviewing court, we may not “speculate about the weight a

sentencing court assigned to an improper consideration.” State v. Gonzalez, 582

N.W.2d 515, 517 (Iowa 1998).

         Rutherford specifically asserts the district court relied upon two

impermissible factors: statements made by the prosecutor that (1) Rutherford

was under the influence of methamphetamine at the time of the incident, and (2)

Rutherford’s sentences should be imposed consecutively due to the current

parole practices of the department of corrections. There is no showing, however,

the sentencing court relied on either of these statements in making its decision.

The court cited several factors, including Rutherford’s mental illness, Rutherford’s

guilt and remorse, the gravity of the charges, the nature and circumstances of the

offenses, and general deterrence. These are permissible factors to consider.

See, e.g., Hall v. Florida, 134 S. Ct. 1986, 1992 (2014) (“Punishment is justified

under one or more of three principal rationales: rehabilitation, deterrence, and

retribution.”); State v. Knight, 701 N.W.2d 83, 86–88 (Iowa 2005) (discussing

remorse as a sentencing factor); State v. August, 589 N.W.2d 740, 744–45 (Iowa

1999) (considering defendant’s mental health in sentencing); State v. Wright, 340
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N.W.2d 590, 594 (Iowa 1983) (“Part of the court’s sentencing responsibility was

to determine whether its sentence would deter defendant from future offenses.”);

State v. Cupples, 152 N.W.2d 277, 280 (Iowa 1967) (stating district court “should

weigh and consider all pertinent matters in determining proper sentence,

including the nature of the offense, the attending circumstances, defendant’s

age, character and propensities and chances of his reform”). At no point does

the court indicate a reliance on Rutherford’s methamphetamine use or the parole

practices of the department of corrections. This claim fails.

    III.      Ineffective Assistance

           Finally, Rutherford argues her trial counsel provided ineffective assistance

by failing to object to the prosecutor’s improper arguments at sentencing and

failing to ensure the court did not consider the impermissible factors. Because

claims of ineffective assistance of counsel have their grounding in the Sixth

Amendment, our review is de novo. See State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012). To prevail on this claim, Rutherford must show counsel failed to

perform an essential duty and prejudice resulted. See State v. Brothern, 832

N.W.2d 187, 192 (Iowa 2013).

           Because we find the district court did not rely on the impermissible factors,

we find Rutherford did not suffer prejudice as a result of any failure on counsel’s

part. Nor was counsel obligated to object in the absence of any indication from

the court that it was relying on those factors in imposing sentence. This claim

fails.
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   IV.     Conclusion

   Because the district court did not sufficiently explain its reasoning in imposing

the sentence it did, we remand for limited resentencing on the issue of whether

Rutherford’s sentences should run concurrently or consecutively. Rutherford’s

request we remand to a different judge for sentencing is denied because that

request had its basis in Rutherford’s second and third claims, which fail.

         SENTENCES VACATED IN PART AND REMANDED.
