                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0873
                              Filed August 2, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

QUINTOREY FARSHAWN D'QUA KEMP,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      A defendant appeals his sentence, asserting district court relied upon

impermissible information. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., Bower, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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BLANE, Senior Judge.

           Defendant Quintorey Kemp appeals his sentence, claiming the district

court improperly relied upon a jury’s guilty verdict in another case, where

judgment had not yet been entered, to determine the sentence to impose in this

case. For the reasons set out below, we find no error and affirm.

      I.      Background Facts and Procedure.

           On March 24, 2014, Kemp was charged by trial information with robbery in

the first degree, willful injury causing serious injury, and intimidation with a

dangerous weapon with intent, in violation of Iowa Code sections 708.4(1),

708.6, and 711.2 (2014).1 Kemp waived a jury and proceeded to a bench trial on

January 15, 2016. The court found him guilty of all three charges on March 21.2

The court ordered a presentence investigation (PSI) report and set sentencing for

May 16. On April 21, the department of correctional services submitted a PSI

report on Kemp as to this case, as well as another case involving him, Black

Hawk County case number FECR208562. The report contained details of both

crimes and sentencing recommendations as to both.

           Before sentencing, Kemp and his attorney reviewed the PSI report. At

sentencing, upon inquiry by the court, Kemp’s attorney advised that they had no

additions or corrections to the PSI. Kemp was sentenced to imprisonment not to

exceed twenty-five years on the robbery charge and ten years on the other two

charges, all to be served concurrently. Because Kemp was a juvenile at the time




1
    Black Hawk County Case No. FECR197044.
2
    Defendant appeared in court on March 25, 2016 for the return of the verdict.
                                              3


of the offense, the court declined to impose the mandatory minimum sentence for

the robbery charge. At sentencing the court stated:

         I also don’t find appropriate, given the second case, given the jury’s
         finding of guilt for the crime of assault while participating in a felony,
         I also don’t find that probation is appropriate because of that. I
         don’t find that deferred judgment is appropriate. Suspended
         sentence isn’t appropriate. Suspended sentence with residential
         facility placement is not appropriate.

         On appeal, Kemp argues the sentencing court abused its discretion by

considering the jury’s guilty verdict of assault while participating in a felony in

FECR208562 because, although a jury verdict of guilt had been entered, Kemp

was still awaiting sentencing—thus there was no final judgment and the court

should not have relied on the verdict.

   II.      Scope of Review.

         This court reviews the district court’s sentence for an abuse of discretion.

State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010). An abuse of discretion is

found when the court exercises its discretion on grounds clearly untenable or to

an extent clearly unreasonable.         Id.   “A district court’s ground or reason is

untenable when it is not supported by substantial evidence or when it is based on

an erroneous application of the law. When a sentence is not mandatory, the

district court must exercise its discretion . . . .” State v. Hill, 878 N.W.2d 269, 272

(Iowa 2016) (internal citations and marks omitted). “Sentencing decisions of the

district court are cloaked with a strong presumption in their favor.”            State v.

Thomas, 547 N.W.2d 223, 225 (Iowa 1996) (citing State v. Loyd, 530 N.W.2d

708, 713 (Iowa 1995)).
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   III.      Discussion.

          Kemp argues that because he had only been found guilty in FECR208562,

but had not yet been sentenced, that crime was “unproven” and therefore the

court could not rely upon it in imposing sentence here.          For the reasons

discussed below, we cannot agree.

          “[W]hen a challenge is made to a criminal sentence on the basis that the

court improperly considered unproven criminal activity, 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) (quoting State v. Longo,

608 N.W.2d 471, 474 (Iowa 2000)). “A court may not consider an unproven or

unprosecuted offense when sentencing a defendant unless (1) the facts before

the court show the accused committed the offense, or (2) the defendant admits

it.” State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). The sentencing court is

permitted to rely upon the factual contents of the PSI report that are undisputed

by the defendant. See State v. Lame, No. 15-1666, 2016 WL 1703018, at *1

(Iowa Ct. App. Apr. 27, 2016) (citing State v. Gonzalez, 582 N.W.2d 515, 517

(Iowa 1998); Witham, 583 N.W.2d at 678); see also State v. Townsend, 238

N.W.2d 351, 358 (Iowa 1976).

          The department of correctional services prepared the PSI report after

Kemp had been convicted in both cases—in FECR197044 by the court and

FECR208562 by a jury—for use by the court in sentencing him in each case.

The report contained a factual summary of Kemp’s criminal conduct as well as

the verdicts. Kemp protested to the PSI report author that he was not guilty of

the assault while participating in a felony, but the jury had rejected this when it
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returned its guilty verdict. Kemp did not object to the contents of the report at

sentencing.     The facts set out in the PSI report show Kemp committed the

assault while participating in a felony for which he was found guilty by a jury in

FECR208562.

         The   court   could   properly   consider   Kemp’s   criminal   conduct   in

FECR208562 under the two different bases set out in Witham. First, Kemp’s

guilt was proven as established by the jury’s return of a guilty verdict. Second,

even if considered “unproven,” the facts before the court as set out in the PSI

report showed Kemp committed the assault while participating in a felony.

   IV.      Conclusion.

         We find the trial court did not abuse its discretion in considering Kemp’s

guilt in FECR208562 in determining and imposing sentence on Kemp in the

present case.

         AFFIRMED.
