State of Iowa v. Tyshaun Damiraey McKinney ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0708
Filed June 21, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TYSHAUN DAMIRAEY McKINNEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Tyshaun McKinney appeals his sentences for theft in the first degree and
going armed with intent. AFFIRMED.
Chris Raker, East Dubuque, Illinois, for appellant.
Brenna Bird, Attorney General, and Nicholas E. Siefert, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Tabor and Greer, JJ.
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BOWER, Chief Judge.
Tyshaun McKinney appeals his sentences for theft in the first degree and
going armed with intent, asserting the district court improperly relied on the
contents of a sealed examination prepared for a transfer-of-jurisdiction hearing.
We find McKinney did not preserve error on his claims and affirm.
I. Background Facts & Proceedings.
On August 1, 2021, McKinney robbed a convenience store while wielding a
firearm. McKinney was sixteen years old at the time. McKinney was charged as
an adult with robbery in the first degree, in violation of Iowa Code section 711.2
(2021), and assault while participating in a felony, in violation of section 708.3. The
trial information further indicated he would be subject to a sentencing
enhancement for using a handgun during the robbery as provided under Iowa
Code section 902.7.
McKinney filed a motion to transfer jurisdiction of his case to the juvenile
court for adjudication and disposition. Juvenile court services prepared a waiver
investigation report recommending McKinney remain in adult court. McKinney had
a psychological evaluation prepared and submitted to the court ahead of the
hearing on his motion to transfer jurisdiction, requesting the evaluation be sealed
as confidential information. The court admitted the evaluation and sealed it at a
Level 3 security level.1 The court ultimately denied McKinney’s motion, finding the
1A document sealed at Level 3 security in adult cases in the court’s electronic filing
and case management system is accessible to participating attorneys, internal
court personnel, and clerks of court and judges. Iowa Judicial Branch, EDMS
Security Levels 4 (Feb. 3, 2023), https://www.iowacourts.gov/static/media/cms/E
DMSSecurityLevels_F52E0C9950721.pdf.
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juvenile system did not offer a viable placement option which would both serve the
child and protect society.
After the court denied the motion to transfer, McKinney and the State
reached a plea agreement. McKinney pleaded guilty to amended charges of theft
in the first degree, in violation of section 714.2, and going armed with intent, in
violation of section 708.8.
The plea agreement noted the State would argue for consecutive
sentences, and McKinney would be free to argue for a deferred or suspended
sentence. The presentence investigation report (PSI) recommended consecutive
sentences. The PSI investigator reviewed the psychological report and referenced
it in the final report. McKinney did not object to the use of the psychological
evaluation in the PSI.
In its sentencing argument, the State referenced findings from the sealed
psychological evaluation submitted as part of McKinney’s motion to transfer to
juvenile court.2 The references were also included in the State’s resistance to the
motion to transfer filed several months earlier. McKinney did not object to the
references at the sentencing hearing, and his counsel used the references to
support mitigating factors of youth. During his own allocution, McKinney explained
some of his troubled history and then told the court
And as the district attorney stated, that I woke up that day and
thought it was going to be fun to go rob a convenience store, and
note as I had stated to the judge beforehand, that—it’s in my PSI.
That—it’s in my PSI that I told him that I woke up on different
substances. I popped pills, smoked weed, and I woke up with a
2Considering the confidentiality concerns expressed in McKinney’s appeal, we do
not share here the exact language objected to.
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cloudy mind, wasn’t thinking straight, and I walked in the store and I
robbed the place.
The court imposed the statutory sentence for each charge and ordered
them to run concurrently. McKinney appeals his sentences.3
II. Standard of Review.
We will not reverse a district court’s sentencing decision “absent an abuse
of discretion or some defect in the sentencing procedure.” State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002). An abuse of discretion may occur
if a sentencing court fails to consider a relevant factor that should
have received significant weight, gives significant weight to an
improper or irrelevant factor, or considers only appropriate factors
but nevertheless commits a clear error of judgment by arriving at a
sentence that lies outside the limited range of choice dictated by the
facts of the case.
State v. Roby, 897 N.W.2d 127, 138 (Iowa 2017) (citation omitted). If a court uses
an improper consideration in sentencing, “resentencing of the defendant is
required . . . even if it was merely a ‘secondary consideration.’” Damme, 944
N.W.2d at 106 (citation omitted).
III. Error Preservation.
McKinney asserts at sentencing the district court erroneously relied on the
psychological evaluation filed as part of his motion to transfer. He argues the
information in the evaluation was confidential and the statements in the evaluation
were specific to the transfer hearing and not admissible under Iowa Code section
3“[G]ood cause exists to appeal from a conviction following a guilty plea when the
defendant challenges his or her sentence rather than the guilty plea.” State v.
Damme, 944 N.W.2d 98, 105 (Iowa 2020).
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232.45(11)(b).4 He claims the court’s use of the evaluation at sentencing violated
his due process rights and his right against self-incrimination.
Generally speaking, “a defendant need not first challenge a district court’s
abuse of discretion at the time of sentencing to have the matter directly reviewed
on appeal.” State v. Gordon, 921 N.W.2d 19, 22 (Iowa 2018). As a matter of
fairness, we do not require a defendant at sentencing to “question the court’s
exercise of discretion or forever waive the right to assign the error on appeal.” Id.(citation omitted). However, there are distinctions between claiming the sentence
is intrinsically unconstitutional and claiming errors in the proceedings prior to
imposition of sentence. Id. at 23.
In Gordon, the defendant “claim[ed] the use of the risk assessment tools
violates his due process rights.” Id. at 23. The court noted the use of the risk
assessment tools was incorporated into Gordon’s PSI before sentencing, and,
after reviewing the report, Gordon did not object to the use of the tools. Id. The
claimed error “occurred in the proceedings prior to the imposition of sentence.” Id.The court found, “Because Gordon’s claim does not involve the inherent power of
the court to sentence him for his crime, the normal rules of error preservation
apply.” Id.Here, McKinney is not claiming his sentence is intrinsically unconstitutional;
he claims use of his voluntarily-submitted psychological evaluation violates his due
process rights and right against self-incrimination. McKinney asserts error was
4Section 232.45(11)(b) provides, “Statements made by the child during intake or
at a waiver hearing held [to determine whether to proceed in juvenile or adult court]
are not admissible as evidence in chief against the child in subsequent criminal
proceedings over the child’s objection in any event.”
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preserved when the district court granted his motion to file the evaluation under
seal with a heightened security level. The State simply noted errors in sentencing
may be challenged on direct appeal even without an objection below. We do not
find either party’s error preservation statement applicable.
As in Gordon, the error McKinney asserts was apparent at the time of the
PSI report and could have been raised with the court at the time of sentencing. “A
court has a right to rely on the information in the PSI when the defendant fails to
object to the information contained in the PSI.” Id. at 24.
McKinney failed to object to the use of the evaluation in the PSI and its use
at sentencing. Therefore, the court had a right to rely on the PSI and the
evaluation. We find McKinney failed to preserve his due process and self-
incrimination claims for direct appeal.
AFFIRMED.