State of Iowa v. Tasha Lynne Koppes

IN THE COURT OF APPEALS OF IOWA
No. 19-0114
Filed January 9, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TASHA LYNNE KOPPES,
Defendant-Appellant.
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Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager,
District Associate Judge.
Tasha Koppes appeals her sentence following her guilty plea to interference
with official acts resulting in bodily injury. CONVICTION AFFIRMED, SENTENCE
VACATED, AND REMANDED FOR RESENTENCING.
Christopher C. Fry and Alyssa M. Carlson of O’Conner & Thomas, P.C.,
Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.
The State originally charged Tasha Koppes with the aggravated
misdemeanor crime of “assault on persons in certain occupations-bodily injury.”
See Iowa Code § 708.3A(3) (2017). Koppes pled guilty to interference with official
acts resulting in bodily injury, a serious misdemeanor. See id. § 719.1(1)(c). The
district court adjudged her guilty and sentenced her to 365 days in jail with all but
ninety days suspended.
On appeal, Koppes contends the court relied on impermissible factors in
sentencing her. Specifically, she asserts the court “improperly considered the
aggravated misdemeanor offense with which [she] was originally charged when
issuing its sentence for the serious misdemeanor to which [she] pled guilty” and
“improperly based [her] sentence on unprosecuted and unproven substance-
related offenses.”
“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.” See State v. Gonzalez, 582
N.W.2d 515, 516 (Iowa 1998). Where a court considers an unproven or
unprosecuted offense without a showing of or admission to the underlying facts,
we will vacate the sentence and remand the case for resentencing. See State v.
Sinclair, 582 N.W.2d 762, 765 (Iowa 1982).
“A person commits interference with official acts when the person knowingly
resists or obstructs anyone known by the person to be a peace officer . . . in the
performance of any act which is within the scope of the lawful duty or authority of
that officer.” Iowa Code § 719.1(1)(a). “If [the] person commits interference with
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official acts, as defined in this subsection, which results in bodily injury, the person
commits a serious misdemeanor. Id. § 719.1(1)(c).
The State offered a document reflecting Koppes’ criminal history. Koppes’
attorney did not object to consideration of the history and made reference to
Koppes’ “two prior OWI’s.” In sentencing Koppes, the district court also referred
to Koppes’ prior operating-while-intoxicated offenses but went further. The court
stated:
[T]his is the third time now that some alcohol- or drug-related—I don’t
know what the facts were of the prior OWI’s but it’s the third time that
there has been an offense related to substance abuse and, again, I
can’t chalk this up to youthful inexperience. You’ve had the prior
OWIs. You’re on probation for the last OWI.
(Emphasis added.)
The crime to which Koppes pled guilty contained no substance-abuse
related element. Nor are there facts showing Koppes committed a substance-
abuse related offense or admitted to such an offense. At most, the record contains
defense counsel’s statement that Koppes and the group she was with “knew that
they’d probably be drinking” and Koppes took an Uber and booked a hotel to avoid
getting “another—any kind of drinking-and-driving charge.” Koppes herself stated,
“[W]e were at the time sleeping in our beds. We weren’t out partying or drinking
all night.”
Based on this record, we conclude an unproven or unprosecuted
substance-abuse related offense was considered in sentencing. We vacate the
sentence and remand for resentencing. Because we are vacating on this ground,
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we need not consider Koppes’ contention that the district court impermissibly
considered the crime with which she was originally charged.
CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.
Mullins, J., concurs; Ahlers, J., dissents.
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AHLERS, Judge (dissenting).
I respectfully dissent. Our supreme court has emphasized that a “sentence
within the statutory limits is cloaked with a strong presumption in its favor, and will
only be overturned for an abuse of discretion or the consideration of inappropriate
matters.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). To overcome the
presumption, a defendant must affirmatively show that the district court relied on
improper evidence such as unproven offenses. State v. Jose, 636 N.W.2d 38, 41
(Iowa 2001). Tasha Koppes did not make such a showing.
Koppes asserts two claims of improper consideration of unprosecuted and
unproven offenses: (1) consideration of the original charge instead of the amended
charge to which Koppes pled guilty; and (2) consideration of the amended charge
as a substance-related offense.
Regarding Koppes’s claim that the district court improperly considered the
aggravated misdemeanor with which she was initially charged rather than the
serious misdemeanor to which she pled guilty, “[t]he fact that the sentencing judge
was merely aware of the uncharged offense is not sufficient to overcome the
presumption that [the court’s] discretion was properly exercised.” State v. Guise,
921 N.W.2d 26, 30 (Iowa 2018) (quoting State v. Ashley, 462 N.W.2d 279, 282
(Iowa 1990)). Overcoming this presumption requires “an affirmative showing that
the trial judge relied on the uncharged offenses.” Id. (quoting Ashley, 462 N.W.2d
at 282). Koppes faults the State for commenting during sentencing, “This could
have ended up much worse than it already did.” She asserts that this comment is
a veiled reference to the original charge. However, this comment can just as easily
be construed as a simple reference to the fact that, when Koppes criminally
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intervened in the officer’s attempts to arrest her sister, the circumstances could
have easily escalated into a much more dangerous or violent episode. It should
not be presumed that the district court construed the State’s ambiguous comment
in the inappropriate way Koppes suggests. In fact, the presumption is that the
district court construed the comment in an appropriate way. See id. (discussing
the presumption that the trial court properly exercised its discretion during
sentencing). Even if the State intended for its comment to reference the original
aggravated misdemeanor charge, there is nothing in the record suggesting that
the district court relied on the comment or the original charge. The court fully
explained its reasons for the sentence without mentioning the aggravated
misdemeanor. I would find the court did not improperly rely on the original
aggravated misdemeanor charge in sentencing.
Regarding Koppes’s claim the district court improperly considered her pled
offense as a substance-related offense, “[w]e will not draw an inference of
improper sentencing considerations which are not apparent from the record.”
Formaro, 638 N.W.2d at 725. Koppes bases this claim on the court’s statement
that “it’s the third time that there has been an offense related to substance abuse.”
First, I note Koppes, not the State, informed the court that she had been drinking
on the night of the incident.1 It strikes me as fundamentally unfair for her to inform
the court that she had been drinking and then claim the court erred by referring to
1 During the course of the sentencing hearing, Koppes’s attorney informed the
court that she had gone to Dubuque to attend a mixed martial arts fight with her
sister and her sister’s friend, expected they would drink alcohol that night, and
arranged for a hotel and Uber rides to and from the hotel in anticipation of such
drinking in part to avoid another operating-while-intoxicated charge. Her brief
acknowledges she “admitted to drinking alcohol earlier in the evening.”
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that information in the course of sentencing. Second, Koppes mischaracterizes
the court’s statement. The court never claimed she was intoxicated during the
altercation, nor did it claim intoxication was an element of the crime to which she
pled. The court simply observed her crime was “related” to substance abuse in
that she admittedly consumed alcohol in the hours leading up to her crime. To
suggest anything more from the court’s comments demands too much of the court2
and undermines the presumption of proper exercise of discretion. Koppes had two
prior operating-while-intoxicated convictions, and she acknowledged renting a
hotel room on the night at issue here to avoid committing another operating-while-
intoxicated offense. The court’s statement that the altercation was related to her
earlier alcohol use is supported by the record, and I do not find an apparent
consideration of an improper factor.
I believe the district court did not improperly consider any unprosecuted or
unproven offenses in issuing Koppes’s sentence. I believe her sentence was
within the court’s discretion, and I would affirm.
2In assessing a trial court’s choice of words, this court has aptly noted:
We understand the rigors of the trial process and recognize that the
intensity of the moment may result in comments which greater
deliberation would reject. We are also aware that the sentencing
process can be especially demanding and requires trial judges to
detail, usually extemporaneously, the specific reasons for imposing
the sentence. The performance of this judicial duty can produce
“unfortunate phraseology” and unintended or misconstrued remarks.
State v. Thomas, 520 N.W.2d 311, 313–14 (Iowa Ct. App. 1994) (citations
omitted).