                    IN THE COURT OF APPEALS OF IOWA

                                 No. 4-057 / 13-0984
                                 Filed March 12, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DESTINY LYNN CHAMBERS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Howard County, George L. Stigler,

Judge.



      A defendant appeals her prison sentence for possession of a firearm by a

felon. SENTENCE VACATED AND REMANDED FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Joseph M. Haskovec, County Attorney, and Alex Koenigs, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
                                           2



TABOR, J.

       Destiny Chambers appeals the prison sentence imposed following her

guilty plea to possession of a firearm by a felon, in violation of Iowa Code section

724.26(1) (2011).     She argues the district court considered an impermissible

factor in determining her sentence. She also contends the court ordered an

improper civil penalty. Chambers asks for a new sentencing hearing.

       Because the district court admitted into evidence, over defense counsel’s

objection, a psychological assessment of Chambers ordered in an unrelated

case, and because that assessment alluded to unprosecuted criminal activity by

Chambers, we conclude resentencing is required. In addition, the parties agree

no statutory authority exists for the civil penalty. Accordingly, the civil penalty

may not be reinstated at the resentencing.

I.     Background Facts And Proceedings

       As a convicted felon, Destiny Chambers is not allowed to knowingly

possess a firearm.1 On October 14, 2011, law enforcement executed a search

warrant of Chambers’s residence.         During the search Chambers handed the

officers a .40 caliber Glock handgun that was in a bag with a fifteen-round clip.

She admitted she should not be in possession of a gun.

       On December 5, 2011, the State charged Chambers with possession of a

firearm by a felon, in violation of section 724.26(1). Chambers entered a guilty

plea on February 4, 2013. As part of the plea agreement, the State dismissed


1
    “A person who is convicted of a felony in a state or federal court, . . . and who
knowingly has under the person’s dominion and control or possession, receives, or
transports or causes to be transported a firearm or offensive weapon is guilty of a class
‘D’ felony.” Iowa Code § 724.26(1).
                                         3



several other charges,2 and the parties were free to argue the appropriate

sentence on the felon-in-possession offense.          At the sentencing hearing

Chambers argued for probation, while the State argued for incarceration. On

May 29, 2013, the district court sentenced Chambers to a prison term not to

exceed five years. It also imposed and suspended a $750 fine with a thirty-five

percent surcharge.     The court imposed a $200 civil penalty in the written

judgment order. Chambers now appeals the sentence.

II.    Standard of Review

       A sentence is reviewed for errors at law.         Iowa R. App. P. 6.907.

Sentencing decisions carry a strong presumption in their favor. State v. Loyd,

530 N.W.2d 708, 713 (Iowa 1995).         We will reverse a sentence only if the

defendant demonstrates an abuse of the district court’s discretion or a defect in

the sentencing procedure, such as the court considering an impermissible factor.

State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). When a court uses any

improper consideration, even if it is a secondary consideration, resentencing is

required. State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981).

III.   Analysis

       A sentencing court cannot consider unproven or unprosecuted offenses

unless the defendant admits to them or facts are presented to prove them. State

v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).          We will not infer the court

considered an improper factor if it is not apparent from the record. Id. Our goal

is not to second guess the sentencing decision but to determine if the decision


2
  In exchange for her guilty plea, the State dismissed three unrelated charges filed
against Chambers subsequent to the felon-in-possession offense.
                                        4



rests on an untenable or improper ground. See State v. Gartin, 271 N.W.2d 902,

910 (Iowa 1978).

       During the May 29, 2013 sentencing hearing, the State offered a

psychological evaluation of Chambers completed on January 25, 2013, in

connection with an unrelated child-in-need-of-assistance (CINA) action.       The

State indicated defense counsel had received a copy of the evaluation. Defense

counsel objected to the admission of the evaluation into evidence at the

sentencing hearing because the preparer was not present for cross-examination.

Counsel argued the presentence investigation (PSI) provided sufficient

information to the court concerning his client’s substance abuse treatment and

other disorders. The court “noted [the] objections” but received the evaluation as

an exhibit.

       The evaluation—conducted by Dr. Joseph Breitenstein to assess

Chambers’s “general personality functioning and parenting potential”—contains

information from Lutheran Services of Iowa worker Jennifer Dailey-Oaks. Dailey-

Oaks reported Chambers “frequently comes up with excuses and often makes

numerous requests for gas cards, etc., and then will use the gas or tangible

services provided, but not go to appointments, etc., and gamble, stay at nice

hotels, and use drugs.” Dr. Breitenstein then wrote Chambers “has manipulated

the treatment system to her advantage, essentially stealing money for drug use

and other sensation seeking when she was supposed to be using this for

traveling to see her children.”
                                        5



      Our record does not show the State charged Chambers with theft or drug

offenses in connection with that alleged conduct nor did she admit to committing

such offenses.

      The sentencing court stated:

             I did read the report of the psychological evaluation of Ms.
      Chambers conducted by Dr. [Breitenstein]. I guess my reading of
      that report and my reading of the presentence report would cause
      me to take some question as to whether Ms. Chambers really has
      learned much and whether she has the ability to follow the rules.
             I heard her testimony that she has made changes since the
      last three months and that she’s now able and willing to follow
      rules, but that has not proven to be the case for the last many years
      and according to Dr. [Breitenstein], probably won’t be the rule for
      quite some time to come. Ms. Chambers, clearly with seven
      commitments to prison, you seem committed to live your life as Dr.
      [Breitenstein] would indicate, that you seem to think that the rules
      don’t apply to you and that you take some personal pleasure in not
      following rules or living up to expectations and that you seem to
      desire to follow your own path in life and do precisely whatever it is
      that you want to do, whatever the rules may be to the contrary.
      This is at least to my analysis in keeping with your personality and
      how you have chosen to live your life up to this point.

      The court acknowledged reading the psychologist’s report and considering

his evaluation of Chambers along with the presentence investigation report. The

court referred to the psychologist’s opinion two more times while giving its

reasons for rejecting probation.        The psychologist’s opinion regarding

Chambers’s noncompliance in the CINA case incorporated his belief she was

“stealing proceeds from gas cards”—an uncharged and unproven allegation of

theft. The judge’s statements indicate he considered the psychologist’s opinion,

which relied on factual circumstances surrounding an unprosecuted offense.

Because we cannot evaluate the influence of those factual circumstances, we
                                          6



must strike down the sentence. See State v. Black, 324 N.W.2d 313, 316 (Iowa

1982).

         The State argues we should presume the sentencing court ignored any

inappropriate information in the psychological evaluation, citing State v. Sailer,

587 N.W.2d 756, 762 (Iowa 1998) (discerning no reliance on improper factors

which would overcome presumption of regularity in sentencing). The State made

the same argument in State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004),

citing Sailer’s presumption of regularity. We cannot entertain that presumption

on this record.

         Although sentencing hearings need not conform to all requirements of a

criminal trial, fundamental fairness is required. State v. Ashley, 462 N.W.2d 279,

282 (Iowa 1990).      Where the district court allows in evidence intended to

influence the sentencing selection—over the objection of defense counsel—we

can no longer assume the court did not consider impermissible information

contained in the challenged evidence.         See Matheson, 684 N.W.2d at 244

(reasoning that by overruling the defendant’s objection to the victim impact

statements, the court determined the evidence was admissible at the sentencing

hearing and nothing in the record indicated the court changed its mind before

pronouncing sentence). Under Matheson,3 once defense counsel unsuccessfully




3
  The dissent accurately distinguishes Matheson as involving out-of-state victim impact
statements, a factor not at play here. But the dissent reads Matheson too narrowly. The
prejudice recognized in Matheson did not flow from the mere submission of impact
statements from people who did not meet the statutory definition of victim, but rather
from the fact the statements contained information regarding unrelated crimes
committed in another state. See State v. Tesch, 704 N.W.2d 440, 453–54 (Iowa 2005)
                                             7



challenged the exhibit,4 the sentencing judge was not merely aware of the

uncharged offenses but could be presumed to have incorporated them into the

sentencing decision. See id. (explaining the State was not “rescued” by holding

in Ashley, 462 N.W.2d at 282 (requiring affirmative showing sentencing court

relied on uncharged offense)).

       Because we cannot speculate about the weight the sentencing court

“mentally assigned” to impermissible information in the psychologist’s evaluation,

or “whether it tipped the scales to imprisonment,” we must vacate the sentence

and remand for resentencing. See Messer, 306 N.W.2d at 733. We have no

way to know what sentence would have been pronounced without consideration

of the evaluation’s references to unproven offenses. See State v. Thomas, 520

N.W.2d 311, 314 (Iowa Ct. App. 1994). Accordingly, we reverse and remand for

resentencing without consideration of the impermissible information contained in

Dr. Breitenstein’s evaluation.5 We do not suggest what the sentence should be.

Messer, 306 N.W.2d at 733.

       Furthermore, the State and Chambers agree the district court erred in

imposing a civil penalty of $200. The court did not cite any statutory authority for

the civil penalty. The legislature authorized civil penalties for sex offenses and in



(distinguishing Matheson and finding no prejudice where impermissible victim impact
statement did not discuss unproven crimes).
4
  The dissent asserts the exhibit was admissible and the district court’s evidentiary ruling
was correct. Those assertions are debatable, given the fact the evaluation was admitted
separately from the PSI report. See Ashley, 462 N.W.2d at 281 (opining information
available to the State before the sentencing hearing must be part of the PSI); see also
Iowa Code §§ 901.3, 901.4 (listing information about the defendant’s mental health and
substance abuse issues as part of the confidential PSI).
5
  We do not rule out the possibility the evaluation could be redacted to omit the
objectionable contents.
                                       8



connection with deferred judgments. See Iowa Code §§ 692A.110(2), 907.14(3).

Neither of those code sections is in play here. The $200 civil penalty is vacated

and shall not be reinstated when Chambers is resentenced. See State v. Keutla,

798 N.W.2d 731, 735 (Iowa 2011).

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      Vogel, P.J., concurs; McDonald, J. concurs in part and dissents in part.
                                        9



MCDONALD, J. (dissents in part)

      I concur in the conclusion the civil penalty was not authorized by statute

and must be vacated. However, because Chambers has not carried the heavy

burden of establishing the sentencing court abused its discretion in imposing the

remainder of the sentence, I would affirm the remainder of the sentence.

      “The [sentencing] decisions of the trial court are cloaked with a strong

presumption in their favor . . . .” State v. Stanley, 344 N.W.2d 564, 568 (Iowa Ct.

App. 1983).    It is the defendant’s burden to overcome the presumption of

regularity by making an affirmative showing that the trial court abused its

discretion. See id. This burden is “heavy.” Id. Where the defendant alleges the

sentencing court took into consideration an impermissible sentencing factor, such

as unproved or unprosecuted offenses, the presumption of regularity can be

overcome only where there is “clear evidence” the sentencing court actually

relied on the impermissible factor in exercising its broad sentencing discretion.

Sailer, 587 N.W.2d at 764. This strong presumption of regularity is afforded the

sentencing court due to our “great confidence in judges” to exercise their

discretion appropriately. See id. We will neither “assume a judge failed to do so”

nor infer a judge failed to do so without clear evidence in the record to the

contrary. Id.; see Formaro, 638 N.W.2d at 725.

      Relying on Matheson, 684 N.W.2d at 244, the majority states that it

“cannot entertain” the long-standing presumption the sentencing court exercised

its discretion appropriately. Instead, the majority states it presumes the opposite

because Dr. Breitenstein’s report was admitted into evidence over defendant’s
                                       10



objection. This result is not required by Matheson. In Matheson, the sentencing

court allowed out-of-state victims of similar but separate crimes committed by the

defendant to present statements at sentencing. See 684 N.W.2d at 244. This

was in clear contravention of the wholly statutorily-created right of victims to

present statements.    See id; Iowa Code § 915.10(3) (defining “victim” as a

person who suffered harm as a result of an offense committed in this state); Iowa

Code § 915.21(1) (providing a “victim” may present an impact statement at

sentencing). Thus, the question presented in Matheson was not whether the

court considered unprosecuted or unproved charges; the statements were from

victims of crimes for which defendant was convicted. Instead, the “sole issue”

presented in Matheson was whether the legal error of allowing impact statements

of persons not “victims,” within the meaning of the statute, to be presented at

sentencing was harmless. See 684 N.W.2d at 243. The Matheson court itself

recognized the issue was “exceptionally narrow.” Id. In addressing that narrow

issue, the Matheson court presumed the sentencing court considered the impact

statements because the court allowed the statements to be presented over the

objection of counsel. It is a fair presumption that a sentencing court takes into

consideration the statements and evidence admitted at sentencing. Given that

presumption, however, the sentencing court’s consideration of the victim impact

statements could not be harmless error as consideration of any part of any of the

statements necessarily was improper because the statements, in their entirety,

were inadmissible.    Matheson thus involved the question of whether the

presumption of regularity should be set aside when the sentencing court commits
                                        11



legal error arising from the consideration of inadmissible evidence. That is not

this case.

       Here, Chambers objected to Dr. Breitenstein’s report on the grounds that

he could not confront and cross-examine the preparer of the report.            The

sentencing court noted the objections but received the exhibit.        On appeal,

Chambers does not challenge the ruling.         It appears that the district court

correctly received the exhibit based on the merits of the objection actually made

as opposed to other possible objections that could have been made.             See

Stanley, 344 N.W.2d at 570 (“Sentencing procedures are governed by different

evidentiary rules than the trial itself.     The sentencing judge should be in

possession of the fullest information possible concerning the defendant’s life and

characteristics and should not be denied an opportunity to obtain pertinent

information by rigid adherence to restrictive rules of evidence properly applicable

to trial.”); State v. Cole, 168 N.W.2d 37, 41 (Iowa 1969) (“During sentencing

procedure defendant does not have a constitutional right to confront all witnesses

against him. . . .   But the sentencing judge may consider information, even

though obtained outside the courtroom, from persons whom the defendant has

not been permitted to confront or cross-examine.”). This case thus presents the

question of whether the presumption of regularity afforded the sentencing court

should be disturbed when it correctly admits an exhibit into evidence over the

objection of counsel.

       The majority concludes that the district court’s correct evidentiary ruling

reverses the presumption of regularity and creates a presumption of irregularity
                                        12



that requires the sentencing court to specifically negate consideration of any

piece of information relating to an impermissible sentencing factor contained in

an otherwise admissible exhibit. I conclude that this case is controlled by Sailer.

When the district court considers admissible evidence that might contain stray

pieces of information relating to impermissible sentencing factors, we presume

that the sentencing court “will filter out improper or irrelevant evidence” without

requiring the sentencing court to negative each and every piece of information

that might possibly relate to uncharged or unproved conduct. Sailer, 587 N.W.2d

at 764. That presumption can be overcome only by the defendant making an

affirmative showing that the sentencing court considered the impermissible

information in making its sentencing determination. As set forth in Sailer and the

numerous cases cited therein, this requires a fairly explicit statement by the

sentencing court that it relied on the impermissible information.       While the

sentencing court here acknowledged that it relied on the doctor’s report in

making its sentencing determination, there is no indication that the court was

sentencing this defendant for unprosecuted or unproved offenses that may or

may not be referenced in the report.

      “Trial courts are granted wide discretion in sentencing.” State v. Bragg,

388 N.W.2d 187, 193 (Iowa Ct. App. 1986) (Donielson, J., concurring).

Competing policy considerations “seem to be at loggerheads,” however, placing

sentencing courts in an “unenviable, no-win position.” Id. “On the one hand, we

want judges to consider all the factors in the record and presentence report and

be open and frank about their sentencing decisions, . . . while, on the other hand,
                                        13



we do not want judges considering any impermissible factors during

sentencing . . . .”   Id.   “If appellate courts constantly reverse and remand

sentences which contain proper reasons for sentencing which also go on to state

other reasons and observations, then sentencing will turn into a ritualistic

proceeding.” Id. at 194. “Rather than forcing trial courts to turn sentencing into a

formalistic and hypertechnical proceeding, . . . if the sentencing judge states

proper reasons based on appropriate foundations in the record, then we should

not look beyond that point.” Id.

       With these things in mind, I cannot embrace a rule that creates a

presumption the sentencing court abused its discretion when it considers

admissible evidence simply because defense counsel objects. Nor do our cases

require such a result. It is one thing to say, as in Matheson, that we can presume

the district court committed non-harmless error when it erroneously considered

inadmissible evidence. It is another thing to say, as here, that we can presume

the district court abused its discretion when it committed no error in admitting an

eight-page exhibit that may contain one or two statements that, arguably, refer to

unproved offenses. Accordingly, I respectfully dissent.
