State of Iowa v. Evan Blake Wooten ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0716
Filed March 3, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EVAN BLAKE WOOTEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
Evan Wooten appeals the sentence imposed upon his criminal conviction.
AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
2
AHLERS, Judge.
Pursuant to a plea agreement that included reduction of charges, Evan
Wooten pleaded guilty to burglary in the third degree. After being sentenced to a
term of incarceration, he appeals the sentence.1 He argues the sentencing court
abused its discretion when it imposed the maximum unsuspended indeterminate
term of imprisonment “without specifying the reasons for the sentence.” See State
v. Gordon, 921 N.W.2d 19, 24 (Iowa 2018) (“We review sentencing decisions for
an abuse of discretion when the sentence is within the statutory limits.”); State v.
Pappas, 337 N.W.2d 490, 494 (Iowa 1983) (holding a sentencing court rarely
abuses its discretion when sentencing within statutory limits unless the trial court
fails to exercise its discretion or considers inappropriate matters).
Wooten seems to suggest the court failed to consider the statutory
sentencing factors contained in Iowa Code section 907.5(1) (2019). While Wooten
discusses his age, criminal history, employment circumstances, family
circumstances, mental-health and substance-abuse history, and upbringing, he
does not state which factor the court allegedly failed to consider. In his sentencing
recommendation, defense counsel highlighted Wooten’s age, “tragic beginning[s],”
mental-health disorders, and employment circumstances. In his statement of
allocution, Wooten homed in on his remorse, employment circumstances,
participation in substance-abuse programming, and family circumstances. The
presentence investigation report detailed Wooten’s age, extensive criminal history,
1 The State agrees Wooten has “good cause” to appeal because he is challenging
the sentence imposed instead of his guilty plea. See Iowa Code § 814.6(1)(a)(3)
(Supp. 2019); State v. Damme, 944 N.W.2d 98, 104 (Iowa 2020).
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employment circumstances, chaotic upbringing, family dynamics, substance-
abuse history, and “extensive history of mental health problems.”
In pronouncing sentence, the court noted it had “listened carefully to all of
the information that has been made available to [it] by both parties and the
presentence investigation report.” Balancing that information with “the nature and
extent of Mr. Wooten’s criminal conviction history,” “the nature and circumstances
of the pending offense,” and “protection of the community,” the court denied
Wooten’s request for a suspended sentence. The record affirmatively establishes
the court considered the section 907.5(1) factors Wooten seems to suggest it did
not. Even if the court failed to address every mitigating factor, it was not “required
to specifically acknowledge each claim of mitigation urged by the defendant.”
State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995).
Wooten goes on to claim the court failed to give consideration to “other
factors as are appropriate.” See Iowa Code § 907.5(1)(g). He only claims
“consideration should be given to the disposition of Wooten’s co-defendant,” who
Wooten alleges pled guilty to the same crime but received a suspended sentence.2
However, that claim is based solely on matters outside the record on appeal and
we are generally unable to consider them See Iowa R. App. P. 6.801 (“Only the
original documents and exhibits filed in the district court case from which the
appeal is taken, the transcript of proceedings, if any, and a certified copy of the
related docket and court calendar entries prepared by the clerk of the district court
constitute the record on appeal.”); In re M.M., 483 N.W.2d 812, 815 (Iowa 1992)
2Wooten and his co-defendant were charged in a single trial information but in
separate criminal cases.
4
(“We limit our review to the record made [below].”); In re Marriage of Keith, 513
N.W.2d 769, 771 (Iowa Ct. App. 1994) (“[C]ounsel has referred to matters
apparently not a part of the record of this appeal. We admonish counsel to refrain
from such violations of the rules of appellate procedure. We are limited to the
record before us and any matters outside the record on appeal are disregarded.”).
While counsel for Wooten has included documents filed in the co-defendant’s case
in the appendix and referred to them in briefing,3 they were not part of the district
court record and their inclusion in the appendix and reference to them in briefs is
inappropriate. See Iowa R. App. P. 6.905(1)(b) (restricting contents of appendix
to “parts of the district court record”). We thus do not consider them.4 In any event,
according to Wooten, his co-defendant was sentenced after Wooten, so the co-
defendant’s sentence was not a fact that existed at the time Wooten was
sentenced. Failure to consider a fact that did not exist at the time of sentencing
does not amount to an abuse of discretion.
Lastly, Wooten claims his receipt of an unsuspended sentence amounts to
an equal protection violation in light of his co-defendant’s receipt of a suspended
sentence. This claim is also based on matters outside the record on appeal, and
we decline to consider it.
3 Counsel has also surveyed the co-defendant’s criminal history as allegedly found
on “Iowa Courts Online.”
4 In his reply brief, Wooten mounts an argument in support of his claim that “it is
proper for this court to take judicial notice of the file from [his] co-defendant.” While
judicial notice may be taken on appeal, the general rule is that it is inappropriate
“to consider or take judicial notice of records of the same court in a different
proceeding without an agreement of the parties.” State v. Washington, 832
N.W.2d 650, 655–56 (Iowa 2013). We have no agreement here, so we decline
Wooten’s request.
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Finding no cause for reversal on the issues and matters properly presented
for our review, we affirm the sentence imposed by the district court.
AFFIRMED.