                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0428
                            Filed December 20, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JESSICA ZOE ZEIEN COX,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Chickasaw County, Richard D.

Stochl, Judge.



      A defendant challenges her sentence for serious injury by vehicle.

SENTENCE VACATED AND REMANDED.



      Adam R. Junaid of Frerichs Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., McDonald, J., and Carr, S.J.*

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

       Jessica Zeien-Cox pleaded guilty to the charge of serious injury by vehicle,

in violation of Iowa Code section 707.6A(4) (2015). At sentencing, she requested

the district court defer judgment. The district court denied the request to defer

judgment and instead sentenced Zeien-Cox to an indeterminate term of

incarceration not to exceed five years, suspended the sentence, and placed her

on probation. Zeien-Cox challenges her sentence in this appeal, contending the

district court abused its discretion in imposing sentence by considering

impermissible information.

       We review sentencing decisions for correction of errors at law. See State

v. Witham, 583 N.W.2d 677, 678 (Iowa 1997). We will not disturb a sentence

unless the defendant demonstrates an abuse of discretion or a defect in the

sentencing procedure. See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002);

State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Resentencing is required if

a court considers improper information at the time of sentencing.             State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

       At issue in this case is whether it was proper for the district court to consider

Zeien-Cox’s intimate relationship with a man subject to an arrest warrant as an

aggravating factor in imposing sentence.            Specifically, the presentencing

investigation report (PSI) contained the following information:

             The defendant is single and not in a relationship at this time.
       She reports being pregnant with twins as a result of a relationship
       with William Charles Anderson . . . . She reports he is in North
       Dakota and they broke up after five months due to arguments. She
       hopes they will reconcile. She denies he has any history of arrest,
       substance abuse or mental health problems. However, on line court
       records indicate there is an active warrant for William’s arrest for
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      felony drug charges in Black Hawk County . . . . The warrant was
      issued in August 2016 after Tri County Drug Task Force executed a
      search warrant at his Cedar Falls apartment allegedly finding
      marijuana, hashish and a .40-caliber handgun.

At the sentencing hearing, the district court explained its reasons for imposing

sentence:

              THE COURT: Jessica Zoe Zeien-Cox, you are hereby
      adjudged guilty of the offense of serious injury by vehicle in violation
      of Iowa Code section 707.6A(4). I do not believe that a deferred
      judgment is appropriate under these circumstances. I’ve reviewed
      the [PSI], and one thing that does concern me is the fact that after
      this incident occurred, you were in a relationship with a man whose
      house was subjected—or a search warrant was executed on his
      home. Marijuana, hashish, and a .40-caliber revolver were in his
      home. That was in August of 2016. According to the PSI, you are
      about two months pregnant, so you continued to have a relationship
      with him after he was arrested. Is that incorrect?
              THE DEFENDANT: That is incorrect. I had no idea that he
      had been in trouble. And we—
              THE COURT: But, I mean, you’re due in August of 2017;
      correct?
              THE DEFENDANT: Correct.
              THE COURT: So your relationship with him was after he had
      been arrested pursuant to a drug search warrant executed by the Tri-
      County Drug Task Force; correct?
              THE DEFENDANT: Correct. But I did not know about that—
              THE COURT: I understand.
              THE DEFENDANT: —until I—
              THE COURT: I understand.
              THE DEFENDANT: —had gotten that paperwork back.
              THE COURT: I also take into consideration the very serious
      nature of this incident, including the serious injuries not only to the
      victim who has written on behalf of himself but also the two other
      victims, this incident—the fact that it occurred very shortly after you
      had inhaled [illegal drugs] within the vehicle while operating the
      motor vehicle. I sentence you to an indeterminate term not to exceed
      five years, fine of $750.00. However, I do suspend the $750.00 fine
      and place you on formal probation for a period of no less than five
      years. However, due to my concerns and the State’s position as to
      deterrence, I do believe it is appropriate that you reside at the
      Women’s Center for Change in Waterloo, Iowa, for a period of up to
      one year or until maximum benefits can be obtained. This will allow
      you to continue to work, to continue to pursue your college education,
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       but it will also allow you to have the supervision that I still believe you
       need under these circumstances. . . .
               The reason for my sentence is the defendant’s age, the
       circumstances of the offense, the work she has done since the
       incident occurred.

The sentencing order that followed listed as reasons for the sentence: “nature of

offense,” “prior record,” and “PSI.”

       As a general proposition, it is not impermissible for the sentencing court to

consider a defendant’s personal relationships in imposing sentence. The Code

provides   the    sentencing    court   shall   consider    the   “defendant’s       family

circumstances” and “[s]uch other factors as are appropriate” in imposing sentence.

Iowa Code § 907.5. In addition, the sentencing court is “free to consider portions

of a presentence investigation report that are not challenged by the defendant.”

Grandberry, 619 N.W.2d at 401. The presentence investigation report “shall”

consider a defendant’s “social history.”        See Iowa Code § 901.3(1)(b).           The

sentencing court’s consideration of the defendant’s personal relationships only

makes sense—one is known by the company one keeps, birds of a feather flock

together, et cetera. The quality of the defendant’s social network and support

system—whether considered as “family circumstances,” “social history,” or “other

factors as are appropriate”—bears directly on the issue of whether the defendant

will succeed under supervised probation and thus whether supervised probation is

an appropriate sentence. See, e.g., State v. Jasper, No. 01-1286, 2002 WL

1430746, at *1 (Iowa Ct. App. July 3, 2002) (stating the defendant’s “current

support network directly reflects on his chances for reform or rehabilitation, and

also reflects on the court’s duty to protect the public from further criminal activity”);
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State v. Hellman, No. 00-1679-CR, 2001 WL 301459, at *1 (Wis. Ct. App. Mar. 29,

2001) (considering defendant’s choices of paramours in imposing sentence).

       We nonetheless conclude the district court abused its discretion in

sentencing this defendant. Where the defendant challenges the sentencing court’s

reliance on certain information in imposing sentence, “the issue presented is

simply one of the sufficiency of the record to establish the matters relied on.” State

v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). Here, the sentencing court took into

consideration the defendant’s intimate relationship with Anderson but repeatedly

stated it considered the fact the defendant continued the relationship with

Anderson after Anderson had been arrested. These facts are not supported by

the record. There is nothing in the record showing Anderson was arrested. Rather,

the record reflects Anderson was subject to an arrest warrant.          Second, the

defendant denied knowledge of Anderson’s activities and also denied an ongoing

relationship with Anderson. The presentence investigation report stated, “The

defendant is single and not in a relationship at this time.”

       The State contends the district court’s misstatements were immaterial to

sentencing. We disagree. The nature of the defendant’s relationship to Anderson

and Anderson’s alleged criminal conduct appear to have been significant

considerations for the sentencing court. In considering those facts, the district

court appeared to have misapprehended the sentencing record. Consideration of

information not supported by the sentencing record is a defect in the sentencing

procedures that requires remand for resentencing. State v. Messer, 306 N.W.2d

731, 733 (Iowa 1981). This is true even if the improper factors were only a

“secondary consideration.” Grandberry, 619 N.W.2d at 401. We do not speculate
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on the weight the sentencing court assigned these factors. Instead, we must

remand this matter for resentencing based on those considerations actually

supported by the record. See State v. Black, 324 N.W.2d 313, 316 (Iowa 1982);

State v. Clayton, No. 10-2002, 2011 WL 3689136, at *2, *5 (Iowa Ct. App. Aug. 24,

2011) (vacating sentence where court stated defendant was “shooting up the town”

with a “semi-automatic loaded” weapon when defendant “made no admissions

regarding the alleged firearm or shooting incident” and entered guilty plea only to

possession of marijuana with intent to deliver).

       For the foregoing reasons, we vacate the defendant’s sentence and remand

this matter for resentencing.

       SENTENCE VACATED AND REMANDED.
