                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0645
                            Filed February 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANIELLE BUNCE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Joel W. Barrows

(plea) and Nancy S. Tabor (sentencing), Judges.



      Danielle Bunce appeals her sentence following a guilty plea to child

endangerment resulting in bodily injury.    SENTENCE AFFIRMED IN PART;

VACATED IN PART; REMANDED.



      Mark C. Smith, State Appellate Defender, for appellant.

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

General, and Michael L. Wolf, County Attorney, for appellee.



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


VOGEL, P.J.

      Danielle Bunce appeals her sentence following a guilty plea to child

endangerment resulting in bodily injury. She asserts the district court imposed

an illegal sentence when it ordered her to pay court costs associated with a

dismissed charge and that it abused its discretion when it relied on improper

considerations when imposing the suspended sentence. We conclude the costs

assessed based on a dismissed count constitutes an illegal sentence;

accordingly, we vacate the imposition of the fine. However, the district court

properly considered various factors and did not abuse its discretion when

suspending the sentence rather than ordering it deferred.       Consequently, we

affirm the suspended sentence but vacate the portion of the sentencing order

assessing the court costs to Bunce associated with count three.

      On June 21, 2013, Bunce was charged by trial information with willful

injury causing serious injury and three counts of child endangerment resulting in

serious injury. The charges were based on conduct that occurred on February

18, 2013, when Bunce discovered her five-week-old daughter, R.B., was injured

but waited twenty-four hours before seeking medical treatment.          Bunce had

noticed R.B. was twitching, as though she was having a seizure, and could not

swallow.1 The injuries had resulted from abuse perpetrated by R.B.’s father and

Bunce’s paramour, Eladio Pena.

      On March 6, 2014, Bunce pled guilty to one count of child endangerment

resulting in bodily injury, in violation of Iowa Code sections 726.6(1)(d) and


1
  The injuries diagnosed at the hospital included a broken neck, a skull fracture, a
fractured rib, and bleeding in the brain.
                                        3


726.6(6) (2013), in exchange for the State’s recommendation of supervised

probation and Bunce’s request for a deferred judgment.           Both agreed the

sentence should be suspended. A sentencing hearing was held on April 4, 2014,

and the district court sentenced Bunce to a term of five years imprisonment,

suspended, a fine of $750 plus surcharge and court costs, and two years of

probation. It dismissed counts one and two of the trial information at the State’s

cost, as well as count three, with costs assessed to Bunce. Bunce appeals.

       We review challenges to an illegal sentence for correction of errors at law.

State v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997). To the extent we are

reviewing the sentence imposed, we review the district court’s decision for an

abuse of discretion. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

       Bunce first argues the district court imposed an illegal sentence when it

ordered her to pay the costs associated with the dismissed count three, and the

State concedes the court erred. When the plea bargain is silent as to costs and

a statute does not authorize the assessment of costs to the defendant for a

dismissed charge, it is error for the district court to order the defendant to pay

such costs. State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991). Here, the plea

bargain was silent and no statute authorized the imposition of costs.

Consequently, the district court imposed an illegal sentence when ordering

Bunce to pay the court costs associated with count three, and we sever this

portion of the sentence from the balance of the sentence. See Bonilla v. State,

791 N.W.2d 697, 702 (Iowa 2010) (holding when part of a sentence is invalid it

may be severed from the rest of the sentence so as to leave the valid portions

intact).
                                         4


      Bunce further asserts the district court abused its discretion when deciding

to suspend the five-year sentence rather than defer it, claiming the court

considered improper factors. She takes issue with the court’s consideration of

unrelated portions of the record and facts that she argues are not supported by

the record, including: (1) the consideration of count three when assessing costs

to her, which was a dismissed charge; (2) her consumption of alcohol prior to the

crime; (3) the court’s observation regarding “new moms”; (4) the court’s

discussion of the child’s injuries; and (5) Bunce’s knowledge of Pena’s propensity

to harm young children.

      When deciding to impose a suspended sentence rather than deferring

judgment, the district court gave the following reasons:

              THE COURT: This is a difficult case. Yes, I agree that [you
      were not] the one who actually inflicted the injuries.
              However, this child suffered injuries to [her] ribs, [her]
      vertebrae. Those are things that even if the bones heal all
      throughout life, if you have a broken neck, you’re going to be
      suffering the rest of your life with pain and inability to do things and
      arthritis and all those kind of things that happen when you have a
      broken bone, and this is a case where you allowed yourself to get
      in a position where somebody that you knew that had the history
      that Mr. Pena had about hurting children was left to take care of
      your child because of how you let your condition get, and then
      when you found out your child was in distress, you did nothing for
      over 24 hours. A screaming baby. New moms, oh, my God, the
      first born the baby doesn’t blink, they’re on the phone to their doctor
      because they’re so nervous they don’t know what to do. They’re
      constantly on the phone. You did just the opposite. Not going to
      do a thing. That’s very, very distressing to me that we have people
      who would have that kind of attitude, and then you lie about it to
      cover your boyfriend? You placed your boyfriend above your own
      child. Those are all really aggravating circumstances, in my
      opinion. I also realize that you’re young and that a felony record
      would impede your ability to get school loans, which you probably
      won’t be able to get anyway because you already have bad credit,
      but it also may be some employment things, so those are factors
      that I’m considering.
                                  5


       I do consider that you weren’t the one who actually inflicted
the injuries, but, again, as your attorney has acknowledged, that’s
not an excuse. It wasn’t like you didn’t know about Mr. Pena and it
wasn’t like you just kind of—it accidentally happened. The
circumstances of this case, as I understand them, as was revealed
in the Minutes of Testimony were that you allowed yourself to get
inebriated and couldn’t care for your child so he was there. Those
are in my mind, again, aggravating factors.
       ....
       [DEFENSE COUNSEL]: The Trial Information, that
statement that she was inebriated that night as set out in the Trial
Information, that was not addressed at the time of plea because it
wasn’t substantive to the charge that she was pleading to. The fact
of the matter is she wasn’t inebriated that night. He was there to
watch the child because she had the child the rest of the time and
the child wasn’t—didn’t tend to sleep through the night, so she—he
came on the weekends sometimes to watch the child so that she
could try to catch up on her sleep.
       THE COURT: Well, it said that she’d been drinking, and
she’s charged with not getting medical care, and in my case it is
substantive because it goes to the fact that she knew about Mr.
Pena and she wasn’t getting up at night taking care of the kid. He
was, and she was letting him do that, and that’s where it’s denying
the care and denying the necessary care. So I’m not—that is not
the—not a factor in my sentencing. It’s merely what the Trial
Information said, and I note that in that she woke up and she knew
the kid was in distress and did nothing, is my issue.
       When she got up in the morning is when she found out the
kid was in distress, and that is when she did nothing.
       ....
       That’s what I understand that the part of the allegation is, is
that once she knew, she didn’t—it took 24 hours to get where she
needed the—more than 24 hours for the kid to get to some kind of
medical care, and it wasn’t even the closest medical care, which is
another issue. It just doesn’t bode well to me with what—how a
new mom acts, that whole new mom thing. You’re more concerned
about kids. When you don’t know something, you’re always asking
and erring on the side of caution. It’s when you have that third and
fourth one that you kind of know what goes on and whether you
need to take them or not.
       Anyway, my concern in this is this is a very serious crime,
and I think that the gravity of the crime and the aggravating factors
in this case outweigh the positives, and I do not feel a deferred
judgment is appropriate, and I will not grant one in this case. I will,
however, agree reluctantly to grant a suspended prison term.
                                        6


       We note that a sentencing decision is cloaked with a strong presumption

in its favor, and a court abuses its discretion only when it imposes a sentence on

grounds clearly unreasonable or untenable. State v. Laffey, 600 N.W.2d 57, 62

(Iowa 1999). Permissible factors to consider include the nature of the offense;

the attending circumstances; the defendant’s age, character, and propensities;

and THE chances of reform. Id.

       Upon review of the record, we conclude the district court did not abuse its

discretion in suspending the sentence rather than deferring judgment.         With

regard to Bunce’s allegation the court considered unadmitted conduct, this error

solely consisted of improperly assigning court costs associated with count three

to Bunce, rather than being an improper consideration. Furthermore, the district

court explicitly stated it did not consider Bunce’s intoxication as a factor in its

sentencing decision, and therefore, Bunce’s arguments in this regard are also

without merit.

       Additionally, the court’s observation with respect to “new moms,” its

discussion of the child’s injuries, and its noted concern that the mother knew of

Pena’s violent history were not impermissible factors to consider. Bunce’s lack of

concern for her child, even as a first-time mother, is part of the attending

circumstances of the crime and, therefore, a factor the court could consider

during sentencing. See generally id. Furthermore, the child’s injuries were an

acknowledged portion of the record and relevant to the severity of the crime—

though R.B.’s injuries included several broken bones, Bunce waited over twenty-

four hours before seeking medical care. Furthermore, the district court noted that

Bunce was not the one who inflicted these injuries, but the severity was
                                        7


nonetheless relevant to Bunce’s culpability with respect to the degree of child

endangerment.

      Finally, Bunce cannot succeed on her argument the record does not

support the court’s statement she knew of Pena’s violent history with regard to

children. Attached to the minutes of testimony was an incident narrative that

contained the officer’s interview with Bunce, in which she stated: “All I know is

that [Pena] beat the s*** out of [his son] and cracked his skull open and he was

taken away.” This is clearly an admission she knew that Pena was violent with

young children. Moreover, given that she pled guilty to child endangerment, this

was a permissible fact for the court to consider when noting how long she waited

to seek medical attention after having left R.B. in Pena’s care. Consequently, the

court did not abuse its discretion when suspending the sentence instead of

deferring judgment, and we affirm.

      We remand to the district court for entry of judgment consistent with this

opinion.

      SENTENCE AFFIRMED IN PART; VACATED IN PART; REMANDED.
