                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1385
                              Filed June 17, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JACOB PHILLIP SCHWAB,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Jacob Schwab appeals his sentences for assault and controlled-substance

convictions. AFFIRMED AND REMANDED.




       Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro, PLC,

Cedar Falls, for appellant.

       Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.




       Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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BOWER, Chief Judge.

      Jacob Schwab appeals two conditions imposed as part of his sentence for

controlled-substance and assault convictions. He claims the court failed to make

required findings to impose a domestic-abuse program condition and improperly

relied on unproven allegations from a victim impact statement in imposing a

residential facility placement. We affirm the residential facility placement and

remand for the district court to enter an order nunc pro tunc to correct the written

sentencing order to correspond with the sentence orally pronounced.

      I. Background Facts & Proceedings

      Schwab was charged with possession of a controlled substance with intent

to deliver, assault causing serious injury, and two counts of possession of

controlled substances. Schwab pleaded guilty to all three controlled-substance

charges and entered an Alford plea to the assault charge pursuant to a plea

agreement.1 The State agreed to recommend a ten-year suspended sentence, a

suspended fine and surcharge, and two-to-five years of probation for the

possession-with-intent offense. With respect to the assault offense, the State

agreed to recommend a five-year suspended sentence, a suspended fine and

surcharge, and two-to-five years of supervised probation.        The State would

recommend a 180-day suspended jail sentence plus two years of supervised

probation on each possession offense and an imposed $315 fine, plus surcharge




1 In an Alford plea, a defendant enters a guilty plea acknowledging the State has
strong evidence of actual guilt but claims innocence or otherwise does not admit
guilt to the underlying facts establishing the crime. See North Carolina v. Alford,
400 U.S. 25, 37 (1970); State v. Burgess, 639 N.W.2d 564, 567 n.1 (Iowa 2001).
                                            3


and court costs, for one of the possession offenses. Schwab was free to request

any sentence he thought appropriate, including a deferred judgment.

       At the sentencing hearing, the State made recommendations as agreed and

the defense argued for a deferred judgment or suspended sentences. The court

heard from the victim in the assault offense. The statement contained additional

details not included in the minutes of testimony.2 The court imposed suspended

concurrent sentences and fines as recommended by the State and an additional

condition—placement in a residential treatment facility for one year or “maximum

benefits.” The written order entered later also included a requirement that Schwab

“successfully complete the Iowa Domestic Abuse Program.”

       Schwab appeals the additional conditions on his sentence.

       II. Standard of Review

       The trial court’s application of sentencing statutes is reviewed for correction

of errors at law. State v. Hensley, 911 N.W.2d 678, 681 (Iowa 2018). Sentences

within statutory limits are reviewed for an abuse of discretion. State v. Gordon,

921 N.W.2d 19, 24 (Iowa 2018). An abuse of discretion occurs when “the district

court exercises its discretion on grounds or for reasons that were clearly untenable

or unreasonable.” Id. (citation omitted).

       III. Analysis.

       Schwab claims the court failed to make necessary findings whether the

relationship between Schwab and the victim met the requirements of Iowa Code



2 The minutes of testimony included a voluntary statement from the victim, which
included significant details about the assault itself and the subsequent delay in
medical attention.
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section 236.2(2)(e) (2018)3 necessary to require the completion of the domestic-

abuse program. Further, the court did not include the program when pronouncing

judgment during the hearing, and neither party requested it.

       The State concedes the written order conflicts with the oral pronouncement

and requests we remand for entry of an order nunc pro tunc to remove the

nonconforming provision—the domestic-abuse program condition. We agree the

sentence pronounced during the hearing controls. See State v. Hess, 533 N.W.2d

525, 528 (Iowa 1995) (“A rule of nearly universal application is that ‘where there is

a discrepancy between the oral pronouncement of sentence and the written

judgment and commitment, the oral pronouncement of sentence controls.’”

(citation omitted)). The sentencing hearing transcript includes no mention or hint

of a domestic-abuse program as part of Schwab’s sentence, and we find the

discrepancy with the written judgment was a result of clerical error, not judicial

intention. We remand for the court to enter an order nunc pro tunc to correct the

written judgment to correspond to the oral pronouncement. See Iowa R. Crim. P.

2.23(3)(g).

       Schwab    also   claims   the   court   improperly   considered    unproven,

unprosecuted allegations from the victim’s statement when imposing a sentence

greater than the State’s recommendations. He asserts the victim offered a wholly

different version of the assault offense, including facts not otherwise included in



3Iowa Code section 236.2(2)(e) defines domestic abuse as an assault “between
persons who are in an intimate relationship or have been in an intimate relationship
and have had contact within the past year of the assault.” The statute includes
several factors the court may consider in determining whether the persons are in
an “intimate relationship.”
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the minutes of testimony. Schwab contends the court abused its discretion by

considering the newly-offered details in its sentencing decision.         The State

counters that the victim’s statement “did not refer to unproven facts or crimes but,

instead, gave a full description” of the assault, her thoughts and emotions during

and after the assault, and the effects of the crime.

       “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.” Gordon, 921 N.W.2d at 25

(citation omitted). The court is to examine “all pertinent information, including the

presentence investigation report and victim impact statements” before sentencing.

Iowa Code § 901.5. The defendant “must affirmatively show that the district court

relied on improper evidence” to overcome the presumption the court properly

exercised its discretion. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001). “We will

not draw an inference of improper sentencing considerations which are not

apparent from the record.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).

       During the sentencing hearing, the court expressed concern over Schwab’s

history of substance and alcohol abuse and his failure to pursue treatment. Before

the victim gave her statement and after a dialogue between the court and Schwab,

the court informed Schwab,

       So I am not predisposed toward a deferred judgment for you on any
       of these matters. I don’t know that prison is called for in your case,
       even though it might be very, very easy to give you prison on Count II
       for what you did to her. But I think some punishment of some nature
       is warranted if for no other reason than to, one, cause you to be more
       serious about getting substance abuse treatment, and two, if ever
       you lose your temper with a young lady or any person as far as that
       goes, not to do what you did in [the assault offense] to another
       person. And so a deferred judgment really is not in the cards for you.
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       Then the assault victim gave an impact statement with her account of the

circumstances of her physical injury and the lasting effects on her physical, mental,

and emotional health and her education. The victim provided some details beyond

those contained in the minutes of testimony.        The victim asked the court for

Schwab’s sentence to “include time in a facility” and stated that a suspended

sentence alone would not hold Schwab accountable for the injury he caused. The

court then had further dialogue with Schwab regarding some statements made by

the victim.

       Victim impact statements may include a detailed description of any physical

injury, its seriousness and permanence, any change in the victim’s personal

welfare, and any other information relating to the impact of the offense on the

person. Iowa Code § 915.21(2). “[I]t is essential to the purpose of the victim

impact statement that the victim be given an opportunity to fully convey the impact

a crime has had.” State v. Sailer, 587 N.W.2d 756, 764 (Iowa 1998). “Although

this may at times result in the airing of allegations which are unproven, we trust

that our district courts, when weighing such statements as part of the sentencing

determination, will filter out improper or irrelevant evidence.” Id.

       When imposing sentence, the court referenced Schwab’s history of

substance-abuse problems and failing to pursue recommended treatment. The

court also referred to Schwab’s “callous indifference” to the victim during and after

the assault, details of which were included in the minutes of testimony. The court

made no reference to the new details from the victim’s statement.
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       Even before the victim impact statement was given, the court expressed

concern about Schwab’s treatment of the victim and stated, “[S]ome punishment

of some nature is warranted.” We see no evidence the court relied on any new

details not conveyed in the minutes of testimony that were not primarily to explain

the impact on the victim in determining its sentence.

       Because Schwab has not affirmatively shown the district court improperly

relied on impermissible factors in sentencing him, we affirm the residential facility

condition. We remand for the district court to enter an order nunc pro tunc

correcting the written judgment to correspond to the oral pronouncement.

       AFFIRMED AND REMANDED.
