                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1181
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VICTOR WAYNE JAMISON,
     Defendant-Appellant.

________________________________________________________________

      Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers,

District Associate Judge.



      Defendant appeals his conviction and sentence for operating while

intoxicated. AFFIRMED.




      Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant.

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

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

       Victor Jamison appeals his conviction and sentence for operating while

intoxicated. We find the district court did not abuse its discretion in sentencing

Jamison to ninety days in jail. We affirm.

       I.     Background Facts & Proceedings

       Jamison was charged with operating while intoxicated, in violation of Iowa

Code section 321J.2 (2015), a serious misdemeanor. He entered into a plea

agreement in which he agreed to plead guilty to the charge and the State agreed

to recommend he receive a sentence of four days in jail.1 The State also agreed

to dismiss a speeding ticket. Jamison signed a written guilty plea, which was

accepted by the court.

       At the July 13, 2016 sentencing hearing, the State recommended Jamison

be sentenced to four days in jail. The court asked what prompted Jamison’s

contact with law enforcement, and the prosecutor stated Jamison had been

driving 138 miles per hour in a sixty-five mile per hour zone. The court then

asked about Jamison’s blood alcohol level and was informed it was .225.

Defense counsel also requested Jamison be sentenced to four days in jail,

pointing out Jamison was employed, had undergone a substance abuse

evaluation, had begun treatment, and had some medical problems. Jamison had

two previous convictions for driving while intoxicated in Virginia.

       The court sentenced Jamison to ninety days in jail, with credit for time

served. The court determined Jamison could leave jail to accommodate his work



1
The plea agreement also encompassed all other mandatory minimum sentences.
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schedule, pursuant to section 356.26, subject to the conditions he exhibit good

behavior and avoid alcohol and drugs. Jamison now appeals.

       II.    Standard of Review

       If a sentence is within the statutory limits, we review a district court’s

sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,

552 (Iowa 2015). “Thus, our task on appeal is not to second-guess the decision

made by the district court, but to determine if it was unreasonable or based on

untenable grounds.” Id. at 553. “In other words, the district court did not abuse

its discretion if the evidence supports the sentence.” Id.

       III.   Discussion

       Jamison claims the district court abused its discretion by sentencing him

to ninety days in jail. He states the court improperly considered the charge of

speeding, which was dismissed.          He claims the court’s inquiry into the

circumstances of his arrest turned the court into an advocate for the State.

       During sentencing, a 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.

Washington, 832 N.W.2d 650, 659 (Iowa 2013). There must be an affirmative

showing the court relied upon improper evidence. State v. Sailer, 587 N.W.2d

756, 762 (Iowa 1998).

       On the other hand, in applying its discretion in sentencing,

               The trial court and we on review should weigh and consider
       all pertinent matters in determining proper sentence, including the
       nature of the offense, the attending circumstances, defendant’s
       age, character and propensities and chances of his reform. The
       courts owe a duty to the public as much as to defendant in
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      determining a proper sentence. The punishment should fit both the
      crime and the individual.

State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979); see also State v.

Thacker, 862 N.W.2d 402, 405 (Iowa 2015). Thus, the court should consider the

nature of the offense and the attending circumstances. State v. Millsap, 704

N.W.2d 426, 435 (Iowa 2005).

      Under the unique circumstances of this case, we determine the district

court could consider the fact Jamison was stopped for speeding and his blood

alcohol level at the time of the stop, as these relate to the nature of the offense

and the attending circumstances. Jamison’s claims would improperly prohibit the

court from considering all of the applicable factors the court should review before

imposing the sentence. See State v. Schlachter, 884 N.W.2d 782, 786 (Iowa Ct.

App. 2016) (noting the parties’ plea agreement could not prohibit the court from

considering a defendant’s criminal history at the time of sentencing).

Additionally, the scope of inquiry in a sentencing proceeding is in the hands of

the court. State v. Cole, 168 N.W.2d 37, 41 (Iowa 1969). Here, where the court

felt more information was necessary in order to fulfill its duty to sentence the

defendant, the court could reasonably make inquiries.      See Washington, 832

N.W.2d at 661 (noting it was “nothing out of the ordinary” for the sentencing court

to ask the defendant about employment and the ability to pay a civil penalty).

      Finally, Jamison claims the court did not look at him individually but

focused solely on the nature of the offense. “The nature of the offense alone

cannot be determinative of a discretionary sentence.”      State v. Dvorsky, 322

N.W.2d 62, 67 (Iowa 1982).
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      At the sentencing hearing, the court stated:

              Mr. Jamison, my goals with respect to sentencing are to
      provide for your rehabilitation and protection of the community. In
      trying to achieve these goals, to the extent these details have been
      made known to me, I have taken into account the
      recommendations of the parties; your age; your employment history
      and circumstances; your educational background; your family
      background and circumstances; your criminal history, including the
      fact that this is your third drunk driving offense since 2013. I have
      also taken into account your appearance and demeanor here in the
      courtroom; your substance abuse issues and needs as addressed
      in the Substance Abuse Evaluation Report on file, as well as
      discussions regarding that issue here today; your mental-health
      issues and needs, as addressed here; the nature of the offense and
      facts and circumstances surrounding it, including the fact that your
      blood-alcohol level was nearly 300 percent of the legal limit; and
      the dangerous driving that was being conducted based on your
      speed. With an excessive blood-alcohol level, as well as the—
      considering the other information contained in the Presentence
      Investigation Report, . . . I have considered all those factors,
      Mr. Jamison, whether I go into detail about them or not.

      We conclude the record shows the court considered several factors,

including the nature of the offense and the attending circumstances, but did not

rely on these two factors alone. The court’s statement during the sentencing

hearing shows the court also considered Jamison’s age, employment history,

educational background, family background, criminal history, substance abuse

issues, and mental health issues. We find Jamison has not shown the district

court abused its discretion by relying solely on the nature of the offense in

determining Jamison’s sentence.

      We affirm Jamison’s conviction and sentence.

      AFFIRMED.

      Potterfield, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, Presiding Judge (dissenting).

      I respectfully dissent.   I would conclude the district court improperly

considered Jamison’s speed.     See State v. Gonzalez, 582 N.W.2d 515, 517

(Iowa 1998).    Accordingly, I would vacate the sentence and remand for

resentencing.
