                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1133
                             Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER ANTHONY SMITH,
     Defendant-Appellant.
________________________________________________________________

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

Richter, District Associate Judge.



       Christopher Smith appeals from the sentence imposed following his plea

of guilty to one count of operating a motor vehicle while under the influence, first

offense. SENTENCE VACATED AND REMANDED FOR RESENTENCING.



       Mark C. Meyer, Cedar Rapids, for appellant.

       Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Sheryl A.

Soich, Assistant Attorneys General, for appellee.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                         2



POTTERFIELD, Presiding Judge.

       Christopher Smith appeals from the sentence imposed following his plea

of guilty to one count of operating a motor vehicle while under the influence of

alcohol (OWI), first offense, in violation of Iowa Code section 321J.2(1)(a) (2013).

He contends the court considered improper factors in its sentencing decision.

We vacate the sentence imposed and remand for resentencing.

I. Background Facts.

       On May 14, 2015, Smith entered a written plea of guilty to OWI, first

offense, as a result of his having driven under the influence on December 22,

2013. At the June 1, 2015 sentencing hearing, the parties advised the court that

two other traffic charges related to the OWI charge (no insurance and failure to

maintain control) were to be dismissed at Smith’s cost, as was an unrelated

citation alleging public intoxication on June 22, 2014. The State recommended

the court impose a term of 360 days in jail with all but sixty days suspended and

self-supervised or “informal” probation.     Smith’s attorney requested the court

impose a term of seven days in jail and that Smith receive work release and

informal probation.    Smith exercised his right of allocution, stating he had

obtained a substance-abuse evaluation as soon as it was possible and followed

through with recommended services. Smith confirmed that he was going to AA

meetings and stated he was “doing very well without drinking.”

       The sentencing court stated:

       Well, Mr. Smith, there are several things I need to take into account
       when I make a decision about sentencing and I’m doing that in your
       case.
                                             3



                 I consider your age, your employment considerations, family
         situation, the need for deterrence, the need for rehabilitation, and
         the nature of the offense.
                 It’s interesting that you’ve gone a long period of time there
         with a gap in charges,[1] but then you got this one and then there
         was another incident in June.
                 You didn’t plead guilty to that but there was a Public Intox
         charge, so that only—I’m not considering that as a conviction in any
         way, but it makes me wonder about how well your sobriety has
         been going.
                 And I can see where the State’s coming from wanting to
         make the jail sentence more severe to impress upon you the need
         for to you maintain your sobriety and need for the community to be
         safe so that way you’re deterred from ever making a poor decision
         again.
                 Also, it’s pretty clear from the incident, whether there was a
         lot of snow on the ground or not, you weren’t able to maintain your
         course on the road and most of the time that’s related to the level of
         intoxication that an individual has when they’re operating, so I’m
         kind of going to go in between the two recommendations, okay?
                 There will be a 360-day jail sentence, but instead of
         imposing 60 I’m going to impose half of that, 30 days, so it’s 360
         with all but 30 days suspended, and I’m also not going to go with
         informal probation.
                 I’m going to make it formal probation to the Department of
         Correctional Services. I’m doing that just as an additional way of
         having someone there to kind of meet with on a regular basis that
         can impress upon you the need for you to maintain sobriety. It’s for
         your own safety and also for the community’s safety.

In its written judgment and sentence, the district court found these factors “the

most significant”: the nature and circumstances of the crime, the plea agreement,

the defendant’s family circumstances, the maximum opportunity for rehabilitation,

the defendant’s age and character, his employment, and the protection of the

public from further offenses.




1
    Smith had prior alcohol-related offenses, two in the 1980s and an OWI in 2006.
                                        4



       On appeal, Smith argues the sentencing court improperly considered an

unproven offense (the dismissed public intoxication charge) and the fact that he

drove into a ditch.

II. Scope and Standard of Review.

       The imposition of a particular sentence within the statutory limits is

committed to the discretion of the district court and will be reversed only upon a

showing of an abuse of that discretion or a defect in the sentencing procedure.

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002); State v. Grandberry, 619

N.W.2d 399, 401 (Iowa 2000). Consideration of an improper sentencing factor

constitutes an abuse of the court’s discretion. State v. Thomas, 520 N.W.2d 311,

313 (Iowa Ct. App. 1994). “It is well-established 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.

III. Discussion.

       “If a court in determining a sentence uses any improper consideration,

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

consideration.’” Grandberry, 619 N.W.2d at 401 (Iowa 2000) (quoting State v.

Messer, 306 N.W.2d 731, 733 (Iowa 1981)). Here, although the district court

attempted to disclaim consideration of the unproven public intoxication charge, it

linked the unproven public intoxication charge to its evaluation of Smith’s efforts

to maintain sobriety. “[W]e cannot speculate about the weight the sentencing

court gave to these unknown circumstances. Since we cannot evaluate their
                                        5



influence, we must strike down the sentence.” State v. Black, 324 N.W.2d 313,

316 (Iowa 1982). “In order to protect the integrity of our judicial system from the

appearance of impropriety,” we vacate Smith’s sentence and remand the case to

the district court for resentencing before a different judge. See State v. Lovell,

857 N.W.2d 241, 243 (Iowa 2014) (remanding where sentencing court attempted

to disclaim reference to impermissible sentencing factor).

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.
