State of Iowa v. Andrew Robert Shadow

IN THE COURT OF APPEALS OF IOWA
No. 17-1139
Filed February 21, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANDREW ROBERT SHADOW,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Peter B. Newell,
District Associate Judge.
Andrew Shadow challenges his sentence following his conviction for
operating while intoxicated, second offense. SENTENCE VACATED AND CASE
REMANDED FOR RESENTENCING.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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DOYLE, Presiding Judge.
Andrew Shadow pled guilty to operating while intoxicated (OWI), second
offense, in violation of Iowa Code section 321J.2(1) and (2) (2016), an aggravated
misdemeanor. The district court sentenced Shadow to prison for an indeterminate
term, not to exceed two years, to be served in an OWI Prison Program. In this
appeal, Shadow challenges his sentence, contending the district court relied on
impermissible sentencing factors.
We review sentencing decisions for correction of errors at law. See State
v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). A sentencing decision will not be
reversed absent a showing of an abuse of discretion or some defect in the
sentencing proceeding. See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
Reliance on an impermissible sentencing factor is a defect in the sentencing
proceeding. See id. One inappropriate matter the sentencing court may not
consider is an unproven or unprosecuted offense. See State v. Jose, 636 N.W.2d
38, 41 (Iowa 2001). Because of the strong presumption in favor of a district court’s
sentencing decision, a defendant must make an affirmative showing the
sentencing court relied on an unproven offense. See id. We will neither assume
nor infer the district court relied on an impermissible factor without clear evidence
in the record to the contrary. See Formaro, 638 N.W.2d. at 725.
Shadow was charged with OWI, second offense, resulting from a February
2016 incident. He pled guilty to the offense, and his plea was accepted at a plea
hearing. Sentencing was set for July 11, 2017, and preparation of a presentence
investigation (PSI) report was ordered. Shadow was charged with driving while
barred, resulting from a December 2016 incident. He pled guilty to the offense at
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a July 11, 2017 plea hearing, and the court accepted his plea. Shadow’s OWI and
driving-while-barred sentencing hearing immediately followed. The court entered
separate judgments and sentences on each offense. Shadow filed notices of
appeal in both matters. On appeal, Shadow only challenges his OWI sentence—
specifically, the prison sentence and placement in an OWI Prison Program.
During the sentencing portion of the hearing, the prosecutor related
Shadow’s criminal record to the court. The prosecutor also stated: “Since
[Shadow] has been arrested for the charge of OWI-Second, [he] has been arrested
six times. The majority of them are traffic charges, but it shows a complete
disregard for the law.” In sentencing Shadow to prison and the OWI Prison
Program on the OWI charge, the court stated:
I think based on your prior criminal history a prison sentence is
merited. I think that as long as the Department of Correctional
Services thinks that you can benefit from the treatment aspect of
incarceration, it’s worth giving that a try to make sure that you don’t
come back to court. I would also say that I am influenced in this
decision by the ongoing criminal activity that you seem to be involved
in; you’ve got a number of pending charges. I guess that’s not really
a factor for the court to consider, um, but I would take into
consideration this driving while barred that you committed after this
matter was pending.
It is the sentencing court’s statement that it was “influenced in this decision by the
ongoing criminal activity that you seem to be involved in; you’ve got a number of
pending charges” that Shadow asserts are the impermissible factors considered
by the court. “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. Shadow contends the court’s self-
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correction—“I guess that’s not really a factor for the court to consider”—was not
sufficient to remove the taint of referencing unproven charges. We agree.
Although the sentencing court attempted to disclaim its reference to the
pending charges, we cannot speculate about the weight the sentencing court gave
to them.1 Since we cannot evaluate their influence, we must strike down the
sentence. State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014).2 We therefore vacate
Shadow’s OWI sentence and remand the case to the district court for resentencing
before a different judge consistent with this opinion. See id.SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
1
Although one of the pending charges reflected in the PSI was the driving-while-barred
offense—an offense to which Shadow had just pled guilty, the PSI lists several other
pending charges to which Shadow had not pled guilty.
2
We note this case is unlike State v. Horst, No. 17-1171, 2018 WL 542638, at *2 (Iowa
Ct. App. Jan. 24, 2018) (“However, unlike the district court in Lovell, the district court here
never mistakenly indicated it considered the intoxication evidence.”), and State v.
Balderas, No. 16-0261, 2017 WL 2181198, at *4 (Iowa Ct. App. May 17, 2017) (“This is
not a case like Lovell, where the sentencing court initially cited an impermissible
sentencing factor before attempting to disclaim the reference later in the hearing.”).