                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1376
                               Filed July 18, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WYATT K. SLINKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.



      Wyatt Slinker appeals his sentence following his guilty plea to involuntary

manslaughter. SENTENCE AFFIRMED IN PART AND VACATED IN PART AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

      A man claimed Wyatt Slinker owed him money. Slinker told the man to get

out of his face, swung at him, and hit him. The man fell to the ground and

eventually died.

      The State charged Slinker with involuntary manslaughter and assault

causing serious injury. See Iowa Code §§ 707.5(1)(a), 708.2(4) (2017). Slinker

pled guilty to involuntary manslaughter, and the State dismissed the assault

charge. The district court adjudged Slinker guilty and sentenced him to prison for

a term not exceeding five years. The court taxed costs to Slinker.

      On appeal, Slinker contends (1) the district court considered improper

sentencing factors, (2) his attorney was ineffective in failing to object to victim

impact statements from the victim’s uncles, and (3) the district court improperly

assessed costs against him on the dismissed charge.

      I.     “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). The sentencing

decision “enjoys a strong presumption in its favor.” State v. Jose, 636 N.W.2d 38,

41 (Iowa 2001). “To overcome the presumption, a defendant must affirmatively

show that the district court relied on improper evidence such as unproven

offenses.” Id.

      Slinker argues the district court considered several unproven charges:

(a) “multiple Disorderly Conduct convictions, when in reality the PSI established

multiple Disorderly Conduct arrests but only one Disorderly Conduct conviction,”
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(b) “a 2016 sentencing for two ‘assaults’ against ‘two separate individuals,’ when

in reality the PSI revealed a 2016 arrest for two assaults against two separate

individuals but listed only one of those assault arrests as resulting in a conviction,”

and (c) his placement “on probation . . . a ‘third time’ prior to the commission of the

instant offense when, in reality, the PSI established that [he] had been placed on

probation only two times prior to the instant offense.”

        The PSI report contained two listings for disorderly conduct: (1) “2/7/2012,

PD, Marshalltown, IA Disorderly Conduct—Abusive Epithets/Threat Gesture,

SMCRO79915 3/13/2012, fine” and (2) “1/17/2015, SO, Tama County, IA

Disorderly Conduct—Loud or Raucous Noise, SMSM011774.” The district court

referred to “a couple of disorderly conduct convictions,” notwithstanding the

absence of a disposition line next to the second listing. However, at the sentencing

hearing, the prosecutor stated Slinker had “a disorderly conduct conviction in 2012

and in 2015.” Slinker failed to object to or correct this assertion. Under these

circumstances, the court could have reasonably relied on the prosecutor’s

representation.

       Context was also key.       The court referred to the disorderly conduct

convictions during a general discussion of Slinker’s lengthy criminal history. The

reference was analogous to the court’s mention of “additional crimes” in Jose. See

id. at 43 (“When considered in context with the remainder of the court’s explanation

for imposing sentence, the reference to ‘additional crimes’ is not an ‘affirmative

showing’ that the court considered unproven charges.”). We conclude Slinker

failed to make “an affirmative showing that the sentencing court relied on unproven

charges in sentencing” him. See id. at 41; see also State v. Johnson, No. 15-1853,
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2016 WL 4803967, at *2 (Iowa Ct. App. Sept. 14, 2016) (noting PSI listed

seventeen arrests and only twelve convictions but court “did not indicate any

reliance on the seventeen arrests”); State v. Hildebrandt, No. 01-1581, 2003 WL

118251, at *2 (Iowa Ct. App. Jan. 15, 2003) (court relied on defendant’s “extensive

criminal history” and defendant “simply has not affirmatively shown that the

sentencing court relied upon unprosecuted or unproven offenses in imposing

sentence, whether based on criminal history data showing charges with no

disposition after eighteen months or other unproven offenses”); State v. Wilson,

No. 00-0609, 2001 WL 427404, at *2 (Iowa Ct. App. Apr. 27, 2001) (rejecting

assertion that “the court’s consideration of the plea agreement necessarily denotes

consideration of charges for which no conviction resulted”).

      The same holds true for the assault convictions and probation sentences.

The record establishes Slinker was convicted of two separate assault counts

stemming from a single arrest, and he was sentenced to three prior periods of

probation. The court did not rely on unproven offenses in sentencing Slinker.

      II.    Iowa Code section 915.21 allows crime victims to present victim

impact statements at or before sentencing.        The term “victim” includes “the

immediate family members of a victim who died or was rendered incompetent as

a result of the offense.” Iowa Code § 915.10(3). Immediate family members are

spouses, parents, children, grandparents, grandchildren, sisters, and brothers;

they are not uncles, aunts, nephews, nieces, and great-grandparents. State v.

Sumpter, 438 N.W.2d 6, 8 (Iowa 1989).

      Slinker contends his attorney was ineffective in failing to object to the victim

impact statements presented by two of the victim’s uncles. See Strickland v.
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Washington, 466 U.S. 668, 687 (1984) (requiring defendants claiming ineffective

assistance to show (1) deficient performance and (2) prejudice).            The State

concedes, “[T]he victim’s uncles were not statutorily eligible to give victim impact

statements” but argues Slinker has failed to show prejudice. See State v. Tesch,

704 N.W.2d 440, 450 (Iowa 2005) (“An inability to prove ‘either the duty or

prejudice prongs defeats the claim of ineffective assistance of counsel.’” (citation

omitted)). To establish prejudice, Slinker must show “a reasonable probability” of

a different outcome. See Strickland, 466 U.S. at 694. On our de novo review, we

agree with the State that Slinker cannot satisfy this standard.

       One or more of the victim’s immediate family members stated (1) the fight

was over a twenty-dollar bill, (2) Slinker showed no remorse, (3) the victim, like

Slinker, had disabilities, (4) the victim’s father was killed by a drunk driver, (5) the

victim’s father suffered some of the same injuries and died under similar

circumstances as the victim, and (6) the victim’s mother lost her sole source of

help. The uncles stated (1) the fight was over a twenty-dollar bill, (2) Slinker

showed no remorse, (3) the victim had a learning disability, (4) the victim’s father

was killed by a drunk driver, (5) the victim’s father suffered some of the same

injuries and died under similar circumstances as the victim, and (6) the victim’s

mother lost her helper. The uncles’ statements did not tell “the court anything that

it did not already know.” See Tesch, 704 N.W.2d at 453; State v. Blythe, No. 08-

1466, 2009 WL 1219055, at *2 (Iowa Ct. App. May 6, 2009) (finding no prejudice

where “the impact statements ‘told the judge little, if anything, that was not already

apparent’” (citation omitted)).   Because their statements were cumulative, we

conclude Slinker’s attorney was not ineffective in failing to object.
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      III.   “[O]nly such fees and costs attributable to the charge on which a

criminal defendant is convicted should be recoverable under a restitution plan,”

unless the plea agreement provides otherwise. State v. Petrie, 478 N.W.2d 620,

622 (Iowa 1991). “A defendant may be assessed costs clearly attributable to the

charges on which the defendant is convicted but may not be assessed costs clearly

attributable to dismissed charges.” State v. Johnson, 887 N.W.2d 178, 181 (Iowa

Ct. App. 2016). “Fees and costs not clearly associated with any single charge

should be assessed proportionally against the defendant.” Id. at 181-82 (quoting

Petrie, 478 N.W.2d at 622).

      Slinker contends the district court improperly taxed him with costs on the

dismissed assault charge.     The State concedes, “[T]he district court’s written

judgment purported to tax costs for the dismissed charge” but argues Slinker failed

to establish he was over-assessed.

      We agree Slinker was assessed costs on the dismissed charge.             Our

conclusion is bolstered by the court’s separate assessment of costs on the

manslaughter charge. Although the State cogently argues the costs listed in the

record are all attributable to the manslaughter charge, our precedent requires us

to vacate that portion of the sentence and remand for a corrected sentencing order.

See State v. Brown, 905 N.W.2d 846, 857 (Iowa 2018); Johnson, 887 N.W.2d at

182-83.



      SENTENCE AFFIRMED IN PART AND VACATED IN PART AND

REMANDED.
