State of Iowa v. Alexander Joseph Carman

IN THE COURT OF APPEALS OF IOWA
No. 22-0354
Filed December 21, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALEXANDER JOSEPH CARMAN,
Defendant-Appellant.
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Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter
(Written Guilty Pleas) and Monica Zrinyi Ackley (Sentencing), Judges.
A defendant appeals the sentences imposed by the district court after his
guilty pleas entered pursuant to a plea agreement. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Olivia D. Brooks, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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CHICCHELLY, Judge.
Alexander Carman appeals the sentences imposed by the district court
following his guilty pleas entered pursuant to a plea agreement. Carman contends
the court considered an improper sentencing factor. Because we find no abuse of
discretion by the district court, we affirm the sentences.
I. Background Facts and Proceedings.
Between April and May of 2021, the State initiated two cases against
Carman stemming from incidents on March 1 and March 12. The parties reached
a combined plea agreement whereby Carman pled guilty to (1) intimidation with a
dangerous weapon (threats only), in violation of Iowa Code
section 708.6(2) (2021); (2) going armed with intent, in violation of Iowa Code
section 708.8 (without the section 902.7 sentencing enhancement for use of a
dangerous weapon); and (3) theft in the fourth degree, in violation of Iowa Code
section 714.2(4). The plea agreement left the parties free to argue for different
sentencing orders. During the sentencing hearing, the State requested
incarceration, while Carman sought a suspended sentence or deferred judgment.
Ultimately, the district court sentenced Carman to indeterminate five-year
sentences on the first two convictions, to be served concurrently with one another,
and declined to suspend the sentences of incarceration. The court also imposed
but suspended the minimum $1025 fine and fifteen percent surcharge on both
counts. As for the theft conviction, the court imposed 180 days of jail incarceration,
with credit for time served, and directed that such term run concurrently with the
sentences for the first two crimes. The court imposed but suspended the $625 fine
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and surcharge. As to all matters, the court found Carman not reasonably able to
pay Category B Restitution. Carman timely appealed.
II. Review.
While the right of appeal is limited for convictions reached pursuant to a
plea agreement, there is good cause for appeal when the challenge, as here, is to
the sentence rather than the guilty plea. See Iowa Code § 814.6(1)(a)(3); State v.
Boldon, 954 N.W.2d 62, 69 (Iowa 2021). We review the sentencing order in a
criminal case for correction of errors at law. State v. Damme, 944 N.W.2d 98, 103
(Iowa 2020). “We will not reverse the decision of the district court absent an abuse
of discretion or some defect in the sentencing procedure.” Id. (quoting State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002)). An abuse of discretion occurs when
“the district court exercises its discretion on grounds or for reasons that were
clearly untenable or unreasonable.” State v. Gordon, 921 N.W.2d 19, 24 (Iowa
2018).
III. Discussion.
Carman alleges the district court abused its discretion when sentencing him
by relying on an unadmitted and unproven allegation that Carman discharged a
weapon. Before the plea agreement, Carman faced additional and enhanced
charges for allegedly firing a gun at an occupied house. However, “[a] court may
not consider an unproven or unprosecuted offense when sentencing a defendant
unless (1) the facts before the court show the accused committed the offense, or
(2) the defendant admits it.” State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).
This is true “even if the prosecutor originally charged the higher crime and reduced
the charge.” State v. Thompson, 275 N.W.2d 370, 372 (Iowa 1979). Here, Carman
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pled guilty only to threatening to discharge the weapon. Yet, the district court
specifically referenced during the sentencing hearing that Carman discharged a
weapon:
This isn’t the Wild West. You don’t get to make the decision about
how, when, or why you use a weapon in the community where that’s
not permissible. . . . You will be put on a payment plan for any
restitution that is owed for property damage done to the residence at
which you shot.
The factual basis admissions contained in Carman’s written guilty plea did
not extend to any actual discharge of the weapon. However, the court’s purview
does not stop there. It may consider factual admissions made in connection with
the presentence investigation (PSI). See State v. Gonzalez, 582 N.W.2d 515, 517
(Iowa 1998) (The “district court is free to consider portions of a [PSI] report that are
not challenged by the defendant.”).
The PSI report states that when asked what happened to cause his arrest,
Carman wrote: “I discharged a weapon at a house.” Carman’s counsel did not
offer any material corrections to the PSI:
Your Honor, first off, my client tells me that he did review the PSI,
and it’s my understanding that the Pre-Sentence Investigation, with
regard to its factual allegations and what it—what it—not the factual
allegations regarding the incident, but with regard to my client’s
history and such, all of that, is factually correct, and we don’t have
corrections.
It is not clear whether counsel’s reference to “factual allegations regarding the
incident” refers to Carman’s admission or the official complaint contained in the
PSI report, which details the resident’s statement that Carman shot at her house
and law enforcement’s recovery of spent shell casings and rounds. In any event,
counsel did not object to the use of Carman’s admission in the PSI report, so the
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district court was permitted to consider it. See Gordon, 921 N.W.2d at 25 (Because
the defendant “failed to object to any of the information contained within the PSI
regarding his arrest, the district court did not abuse its discretion in relying on the
unprosecuted charge or surrounding circumstances.”); Gonzalez, 582 N.W.2d at
517 (“The defendant did not object to that portion of the PSI report which included
his admission that he had assisted in the sale of cocaine on East 6th Street and
the sentencing court was free to consider it.”).
Because Carman has not established the district court relied on
inappropriate sentencing factors or unproven offenses, we cannot say the district
court abused its discretion. Accordingly, we affirm Carman’s sentences.
AFFIRMED.