                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1286
                                Filed April 8, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA B. GORLA,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



       Joshua Gorla appeals the sentence imposed following his guilty plea to

willful injury causing bodily injury in violation of Iowa Code section 708.4(2)

(2013). AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John Sarcone, County Attorney, and David Porter, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., Potterfield, J., and Mahan, S.J.*

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

      Joshua Gorla appeals the sentence imposed following his guilty plea to

willful injury causing bodily injury in violation of Iowa Code section 708.4(2)

(2013), which was a lesser-included offense of willful injury causing serious

injury, the offense with which he was originally charged. Gorla contends the

district court considered the unproven greater offense (willful injury causing

serious injury) in sentencing him to a term of incarceration not to exceed five

years. Concluding the district court did not abuse its discretion in sentencing

Gorla, we affirm.

I. Background Facts and Proceedings.

      On September 13, 2013, Gorla was at his cousin’s house, when Gorla’s

older brother came over. At the plea hearing, Gorla described the event that led

to his being charged: “my brother comes over to my cousin’s house and the three

of us get into an altercation and I held my brother down on the ground and then

my cousin kicked him in the head several times.”         The following exchange

occurred at the plea proceeding:

               THE COURT: And I assume your cousin had the intent to
      inflict serious injury on your brother by kicking him in the head?
               THE DEFENDANT: Yes, sir. I did attempt to stop him from
      kicking him in the head by putting my arm in front of his leg. My
      intentions was [sic] not to have him kicked in the head.
               THE COURT: Well, if you are guilty of this charge, you or the
      person that you were assisting has to have had the intent to inflict
      serious injury on the other person. You heard me tell you what the
      State would have to prove. Did you or this person you were
      assisting have the intent to inflict serious injury?
               THE DEFENDANT: Yes, we did.
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As a result of the altercation, Gorla told the court that his brother suffered “a head

injury to his face.” The court asked him, “Bruise, scratch?” Gorla described the

injury as a “gouge” under his eye.

       A presentence investigation (PSI) report was prepared. Gorla’s criminal

history showed several alcohol-related offenses, as well as a family history of

alcoholism. Included in the PSI was Gorla’s brother’s submitted victim impact

statement, which included:

               This has affected my day to day life tremendously; I have
       mood, swings and a fear of people in general. . . . Because of my
       brother’s actions I have mental break downs 3-4 times were
       week. . . . I have an anxiety disorder and have to see my
       psychiatrist to have my medication increased. . . .
               When it comes to injuries, l had to go to the emergency room
       and was taken immediately to trauma. I had severe bruising on the
       right side of my face and my right eye was swollen shut for about 3
       days. I had a cut under my right eye and will have a permanent
       scar[]. I had a scratched cornea to my right eye, which has healed.
       I had bruises all over my body, which ha[ve] healed. I was admitted
       into the hospital and was given morphine and dilaudid for my
       extreme pain while in the hospital. Upon my release, I had to take
       oxycodone for pain management. I was bed ridden for about a
       week and had to constantly keep ice on my face to get the swelling
       down. My mother had to take care of me for about a week while
       my wife was at work. My wife had to take care of me after work.
       Most nights I had to wake her up in the middle of the night because
       of the extreme pain I was in. Due to the fact that the defendant is
       my little brother the pain hasn’t or maybe never will go away. What
       I mean by this is at this time the physical pain is gone, but the
       emotional trauma is constant. I would rather be in physical pain
       th[a]n to have to deal with my emotional pain. I love my brother
       and hope he can get help.

The PSI concluded:

              Based on the information gathered, verified and contained in
       this report, and on the serious nature of the crime, it is the
       recommendation of this investigator that Mr. Gorla be sentenced to
       prison. While incarcerated, this agent would recommend the Court
       order the defendant:
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            -obtain a substance abuse evaluation and follow all
      recommendations
            -be screened for an assaultive behavior course
            -follow any other recommendations his correctional
      counselor might have

Gorla had no objections to the PSI.

      Sentencing took place before the same judge who took Gorla’s plea and

heard Gorla’s admissions regarding the injuries sustained by his brother. The

prosecutor concurred with the PSI recommendation of incarceration “[d]ue to the

defendant’s lengthy criminal history dating back to 1998, due to the fact that

defendant was on parole at the time this offense took place[,] and considering the

severity of the offense.” The defense argued for a suspended sentence and

placement at the Fort Des Moines Correctional Facility, acknowledging an

alcohol problem and noting Gorla had discharged his parole following his arrest

and had possible employment. In allocution, Gorla stated,

             Your Honor, that I wasn’t in the right state of mind for the last
      quite a few months with the alcohol drinking and I apologize for my
      not doing what the court is asking me to as far as the PSI and my
      obligation that I was supposed to do.
             Your Honor, it is my older brother, I love him very much. I
      would never, never want something like this to happen to him. It
      wasn’t something that I was intending to do. That’s all I got, your
      Honor.

The district court imposed an indeterminate sentence of five years.

      Gorla now appeals, contending the court improperly relied upon an

unproven offense.

II. Scope and Standard of Review.

      “Because the sentence imposed does not fall outside statutory limits, our

review is for abuse of discretion.” State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001);
                                         5

see also State v. Knight, 701 N.W.2d 83, 85–86 (Iowa 2005). “Such abuse

occurs when the district court exercises its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” Jose, 636 N.W.2d at 41

(citation and internal quotation marks omitted).

III. Discussion.

       “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). “If a district

court improperly considers unprosecuted and unproven additional charges, we

will remand the case for resentencing.” Id.; see also State v. Lovell, 857 N.W.2d

241, 242–43 (Iowa 2014) (“We will not vacate a sentence on appeal unless the

defendant demonstrates an abuse of trial court discretion or a defect in the

sentencing procedure such as the trial court’s consideration of impermissible

factors.   However, if a court in determining a sentence uses any improper

consideration, resentencing of the defendant is required, even if it was merely a

secondary consideration.” (citations, alterations, and internal quotation marks

omitted)). “On our review, a district court’s sentencing decision enjoys a strong

presumption in its favor.” Jose, 636 N.W.2d at 41.

       To support his challenge to the sentence imposed, Gorla points to the

highlighted statement below included in the district court’s statements during

sentencing:

              Well, the court has considered the presentence investigation
       report, the statements of the attorneys, statement of the defendant.
       The court believes incarceration is appropriate in this case for
                                  6


several reasons: Number one would be the defendant’s criminal
history. I don’t have any doubt that your criminal history is mostly
from drinking, that you were on parole for a third OWI, is that what
you were on parole for when you did this? You were in the OWI
treatment facility while you were actually incarcerated?
        THE DEFENDANT: For the majority of the time, yes.
        ....
        THE COURT: So I misread the year here but still in all the
criminal history, the inability for whatever reason having had
several opportunities to address your alcoholism and your drinking
and your criminality that results from it, the dangerousness that you
pose to people like your brother when you are drinking but the other
thing is I read in here it said you told the PSI investigator—well,
maybe I was confused by it. You said you weren’t using any drugs
when this happened. Were you drunk?
        THE DEFENDANT: During the incident? Yes, I was drunk.
        THE COURT: So driving while you are drunk, a history of
driving while you are drunk, history of fighting while you are drunk,
beating up your brother, helping your cousin beat up your brother
and your brother was very gracious in what he said to you, but he
also said you need to take responsibility for what you did and your
part of it.
        He was seriously injured. He acknowledged that your cousin
did most of the actual beating but it wouldn’t have been possible for
him to do that without you holding your brother, dragging your
brother down.
        So to the extent you minimize this because you weren’t the
one that actually kicked your brother in the face, that’s minimization
that is not warranted by your behavior. So I believe—and the fact
that you missed—after you pled guilty and were supposed to go to
do an interview for the PSI, you missed your appointment and why
was that?
        THE DEFENDANT: Just irresponsibility.
        THE COURT: So PSI recommends incarceration and it is
fully warranted for the reasons that I just said. Hopefully you get
the message at some point in time. I know you were in prison for
OWI third. Now you are going to prison for committing a crime,
assaultive violent crime. Maybe now when you are actually in
prison for a criminal offense not related directly for treatment you
will get the message that you need to do something about your
alcoholism right now or you will keep going to jail, getting out.
        You might end up killing somebody at some point either by
driving a car when you are drunk or getting in a fight and maybe the
other person has a weapon or something and all of a sudden the
person that you didn’t intend to kill is dead and you are just as
responsible as the person that you were with.
                                         7


               That’s sort of the behavior that you are showing here as you
       move along through your life so you need a message to stop that.
       Hopefully this will be it.
               For the reasons that I just said, on the defendant’s conviction
       of willful injury causing a bodily injury, the defendant is sentenced
       to an indeterminate term of incarceration not to exceed five years.
       The mandatory minimum fine is imposed but suspended because
       of the defendant’s incarceration.

       Gorla argues the district court’s consideration of the fact that Gorla’s

brother was “seriously injured” was improper because “serious injury” is a term of

art in Iowa law. See Iowa Code § 702.18 (defining “serious injury” as either

“disabling mental illness” or “bodily injury which does any of the following:

(1) [c]reates a substantial risk of death; (2) [c]auses serious permanent

disfigurement; [or] (3) [c]auses protracted loss or impairment of the function of

any bodily member or organ”).        Gorla contends, “The court’s statement that

Gorla’s actions ‘seriously injured’ his brother demonstrates that the court

considered an unproven crime—the greater charge which was dropped in

exchange for Gorla’s guilty plea.”

       The State urges us to find either that the district court was using the

phrase “seriously injured” in a colloquial sense to mean “badly hurt,” or even if

the court had considered the fact that the victim suffered what could be legally

defined as a serious injury, no error occurred because the record establishes the

victim suffered a serious injury.

       This court accepted an argument similar to the one raised by Gorla in

State v. Carter, No. 13-048, 2014 WL 69755, at *2–3 (Iowa Ct. App. Jan. 9,

2014), where the defendant was originally charged with willful injury causing

serious injury but pled guilty to willful injury causing bodily injury. There, Carter
                                        8


swung a beer bottle, striking a bar bouncer in the face—the bouncer sustained a

chipped tooth and a lacerated lip requiring stitches and leaving a scar. Carter,

2014 WL 69755, at *1.      The sentencing court several times referred to the

defendant having caused serious injury. Id. at *2. We observed, “While the

minutes noted the bouncer was left with a scar on his lip, not all scarring amounts

to serious permanent disfigurement.” Id. at *3 (citing State v. Hanes, 790 N.W.2d

545, 554 (Iowa 2010) (finding it proper to allow the jury to determine whether a

scar constitutes serious permanent disfigurement)).

      This case is distinguishable from Carter because there are sufficient facts

in the plea and sentencing records from which the district court could find the

assault caused serious injury. See Formaro, 638 N.W.2d at 725 (noting “the

sentencing court may not rely upon additional, unproven, and unprosecuted

charges . . . unless there are facts presented to show the defendant committed

the offenses”). The assault here involved Gorla holding his brother down while

his cousin repeatedly kicked him in the head. Gorla admitted during his plea

colloquy that his cousin had the intent to seriously injure his brother and—

implicitly acknowledging the danger this caused—Gorla stated he tried to block

kicks to his brother’s head. He also admitted his brother suffered a “gouge”

under his eye, which is qualitatively different than the scarred lip suffered in

Carter.   And Gorla’s brother offered a statement that he continues to suffer

anxiety and “mental break downs.” See State v. Phams, 342 N.W.2d 792, 795-

96 (Iowa 1983) (discussing bodily injury which creates a substantial risk of death

or which causes serious permanent disfigurement).          “There is no general

prohibition against considering other criminal activities by a defendant as factors
                                        9

that bear on the sentence to be imposed.” State v. Longo, 608 N.W.2d 471, 474

(Iowa 2000) (allowing judge to consider defendant’s criminal activity presented to

him in sworn testimony at sentencing hearing). We conclude the district court did

not abuse its discretion in sentencing Gorla. We therefore affirm.

      AFFIRMED.
