                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1119
                              Filed June 3, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA LEON BEGLE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Robert J. Richter,

District Associate Judge.



      Joshua Begle appeals his sentence for one count of operating a motor

vehicle without owner’s consent, in violation of Iowa Code section 714.7 (2019).

AFFIRMED.



      Martha J. Lucey, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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GREER, Judge.

       Joshua Begle challenges the sentence imposed following his guilty plea.1

We find Begle’s arguments without merit and affirm.

       I. Background Facts and Proceedings.

       In June 2019, Begle pled guilty to one count of operating a motor vehicle

without owner’s consent in violation of Iowa Code section 714.7. In exchange for

Begle’s plea, the State agreed to recommend he serve an indeterminate prison

term not to exceed two years to run concurrently with a previously imposed

sentence for a parole violation. The court was not bound by the plea agreement’s

sentencing recommendation. The court accepted Begle’s guilty plea.

       At sentencing, the State stood by its recommendation in the plea

agreement, which Begle joined. The State recommended the court follow the plea

agreement “in light of the fact that the defendant is already serving a parole

violation in this case.” The prosecutor told the court, “This will add a few more

months’ time to Mr. Begle’s parole violation thus provide the necessary sentencing

for the operating a motor vehicle without owner’s consent.” The court then had the

following exchange with the parties:

              THE COURT: Okay. What do you mean going to add a few
       months to the . . . parole violation?
              PROSECUTOR: My understanding is that it will add a few
       months to—he was going to be discharged as of February 2020,
       that’s my understanding, and so this would add some extra time.

1The amended Iowa Code section 814.6(1)(a)(3) (2019) prohibits appeals from
guilty pleas other than those for class “A” felonies or where a defendant establishes
good cause. The amendments took effect July 1, 2019. Here, judgment was
entered against Begle on June 7, 2019, and he filed his notice of appeal on July 2,
2019. The “amendments do not apply retroactively to appeals from judgments
entered before July 1, 2019.” State v. Gordon, ___ N.W.2d ___, ___, 2020 WL
2090108, at *4 (Iowa 2020) (emphasis added). So Begle’s appeal is not prohibited.
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              THE COURT: This conviction in my sentence here isn’t going
      to do any of that if I follow your agreement. Your agreement is that
      it be a concurrent sentence.
              PROSECUTOR: Yes, it will, even though—correct, it will.
              THE COURT: But that’s a function of the parole case.
              PROSECUTOR: Correct.
              THE COURT: I’m not allowed to consider those collateral
      issues in my ruling for this charge.
              PROSECUTOR: Right.
              THE COURT: You agree with that?
              PROSECUTOR: I do agree with that.
              THE COURT: Okay. I’m just going to make that clear for the
      record that I’m not considering what that would have as an impact on
      the parole case.
              PROSECUTOR: The court is correct. Thank you.
              THE COURT: Okay. [Defense counsel]?
              DEFENSE COUNSEL: Your Honor, we would ask the court
      follow the recommendations of the negotiations. [The prosecutor] is
      correct, it would be a little bit of overlap, even if the court does view
      a concurrent sentence. It would be concurrent from the day of this
      sentencing or the court determines an earlier date that it would apply
      for the concurrent time, but there will be some overlap so that the
      discharge date will be moved out a few extra months because you
      can’t get concurrent time for the whole entire time so we do feel that
      it is an appropriate sentence.
              Mr. Begle has been incarcerated for several years and
      currently is incarcerated as a result of . . . parole violation. He does
      understand that this will result in a little bit of extra time for him and
      he is aware of that and he feels that it is appropriate given the
      circumstances despite the fact he’s already served a considerable
      amount of time in prison already.

      With no requirement that the court follow the plea terms, the court rejected

the sentencing recommendation and instead sentenced Begle to serve a term of

incarceration not to exceed two years, with the term to run consecutively to his

previously imposed sentence. The court stated these reasons for the sentence:

      All right. When I make a decision about sentencing I have to take
      into account several factors. I consider your age, the nature of the
      offense, the need for rehabilitation, also your criminal history, crime
      to any victim, your family situation and also the impact a sentence
      would have on current employment or future employment.
              When I factor everything together and I consider the harm to
      the victim and I consider your criminal history, the nature of the
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       offense, it isn’t appropriate for a concurrent sentence here. I’m not
       going to do it.
               It’s going to be a consecutive two-year prison sentence and a
       fine of $625 as well.

In the sentencing order, the court noted that it considered all of the sentencing

factors in Iowa Code section 907.5 and found the nature of the offense and the

plea agreement the most significant factors. Begle appeals.

       II. Standard of Review.

       “We review the district court’s sentence for an abuse of discretion.” State

v. Hill, 878 N.W.2d 269, 272 (Iowa 2016) (citation omitted). “A district court abuses

its discretion when it exercises its discretion on grounds clearly untenable or to an

extent clearly unreasonable.” Id. A “ground or reason is untenable when it is not

supported by substantial evidence or when it is based on an erroneous application

of the law.” State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014).

       III. Analysis.

       “[T]he decision of the district court to impose a particular sentence within

the statutory limits is cloaked with a strong presumption in its favor.” State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “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.’” State v. Lovell, 857 N.W.2d 241, 242–43 (Iowa 2014) (per

curiam) (quoting State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998)). “However,

‘[i]f a court in determining a sentence uses any improper consideration,

resentencing of the defendant is required,’ even if it was ‘merely a “secondary

consideration.”’” Id. at 243 (alteration in original) (citation omitted).
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       On appeal, Begle claims his case should be remanded for resentencing

because the court: (A) improperly considered his parole eligibility in imposing his

sentence; (B) abused its discretion by imposing a consecutive rather than

concurrent sentence; and (C) did not state sufficient reasons for the sentence on

the record. We will consider his arguments in turn.

       A. Considering Parole Eligibility. Begle first argues the district court

impermissibly considered his parole eligibility when imposing the sentence. “We

have said a sentencing court impermissibly invades the prerogative of the parole

board by considering the effect a sentence will have on a defendant’s parole date.”

State v. Bentley, 757 N.W.2d 257, 266 (Iowa 2008); see also State v. Remmers,

259 N.W.2d 779, 785 (Iowa 1977) (same).

       Here, the district court explicitly noted it would not consider the effect of

Begle’s sentence on his parole eligibility before it imposed the sentence. Contra

Lovell, 857 N.W.2d at 243 (striking down a sentence after the sentencing court

referred to impermissible factors when imposing the sentence, even though it said

it was not relying on those factors, because there was no way to “speculate about

the weight the sentencing court gave to these unknown circumstances”). For that

reason, we find this claim of error without merit.

       B.   Reasons for a Consecutive Sentence.            Begle next argues the

sentencing court considered improper factors when imposing the consecutive

sentence. Begle claims the court considered unproven offenses in the victim

impact statement and Begle’s criminal history that was not disclosed in the record.

       “Iowa Rule of Criminal Procedure 2.23(3)(d) requires the district court to

‘state on the record its reason for selecting the particular sentence.’        Rule
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2.23(3)(d) applies to the district court’s decision to impose consecutive sentences.”

Hill, 878 N.W.2d at 273. Stating the reasons for a sentence “ensures defendants

are well aware of the consequences of their criminal actions” and “affords our

appellate courts the opportunity to review the discretion of the sentencing court.”

Id. (citation omitted). Although in imposing a consecutive sentence, “the court may

rely on the same reasons for imposing a sentence of incarceration.” Id. at 275. “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.”

Formaro, 638 N.W.2d at 725.

       1. Unproven offenses. Begle claims the victim alleged unproven and

uncharged offenses during her impact statement. Specifically, the victim claimed

Begle destroyed stickers on the vehicle, took property from the vehicle, and left

drugs on the center console. Because the court relied on “the harm to the victim”

while imposing the sentence, Begle argues the court necessarily considered these

unproven offenses.

       Here, there is no evidence that by considering “the harm to the victim”

resulting from Begle’s crime the court considered the unproven allegations the

victim made during her statement. See State v. Sailer, 587 N.W.2d 756, 761 (Iowa

1998) (“We trust the sentencing court with the discretion and responsibility to avoid

consideration of any unproven offenses which may arise in the content of the victim

impact statement.”). Considering the nature of the offense, including the harm the

defendant causes to the victim, is pertinent information at sentencing. See Iowa

Code § 901.5(3) (“After receiving and examining all pertinent information, including
                                                 7


the presentence investigation report and victim impact statements” the court must

determine which sentence “will provide maximum opportunity for the rehabilitation

of the defendant, and for the protection of the community from further offenses by

the defendant and others.”); see also State v. Johnson, 513 N.W.2d 717, 719 (Iowa

1994) (noting the court may consider “the nature of the offense [and] the attending

circumstances” when imposing a sentence).            Begle failed to show the court

considered any unproven offenses in the victim impact statement.

        2. Criminal history. Begle also claims the court improperly considered his

criminal history because it was outside the record at sentencing. He does not

establish which crimes he believes the court improperly considered.

        It was no secret that Begle was currently serving a sentence for a parole

violation.   The memorandum accompanying the plea agreement specifically

addressed his “present parole violation incarceration.”       At sentencing, Begle

acknowledged he was serving the parole-violation sentence. For that reason, the

court could properly consider that conviction as part of Begle’s criminal history and

did not abuse its discretion by relying on it at sentencing. See Formaro, 638

N.W.2d at 725; see also State v. Goodwin, No. 16-1346, 2017 WL 2461603, at *2

(Iowa Ct. App. June 7, 2017) (concluding that the sentencing court considering,

among other things, a defendant’s criminal history, did not abuse its discretion in

imposing sentence); State v. Sigler, No. 03-0206, 2003 WL 22089322, at *1 (Iowa

Ct. App. Sept. 10, 2003) (“We find the district court properly considered the

pertinent sentencing factors in applying its discretion by considering [the

defendant]’s . . . criminal history . . . .”).
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         C. Sufficiency of Reasons for Sentence. Finally, Begle argues the court

did not state sufficient reasons for the sentence. Begle points to the sentencing

order, which listed “The nature and circumstances of the crime” and “[t]he plea

agreement” as the “most significant” factors in determining the sentence.

         “While the rule requires a statement of reasons on the record, a ‘terse and

succinct’ statement may be sufficient, ‘so long as the brevity of the court’s

statement does not prevent review of the exercise of the trial court’s sentencing

discretion.’” State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015) (citation omitted).

“A terse and succinct statement is sufficient, however, only when the reasons for

the exercise of discretion are obvious in light of the statement and the record before

the court.” Id.

         While Begle directs us to the sentencing order, we also note the court’s

statement on the record at the sentencing hearing detailing the reasons for the

particular sentence it imposed. We find the district court’s statement of reasons

for the sentence was sufficient.

         IV. Disposition.

         For all of the above-stated reasons, we affirm the district court’s sentencing

order.

         AFFIRMED.
