State of Iowa v. Warren William Lovell , 857 N.W.2d 241 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 13–1895
Filed December 19, 2014
STATE OF IOWA,
Appellee,
vs.
WARREN WILLIAM LOVELL,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Muscatine County, Mary E.
Howes, Judge.
The defendant seeks further review of a court of appeals decision
affirming his sentence. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellant Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather A. Mapes, Assistant
Attorney General, and Alan Ostergren, County Attorney, for appellee.
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PER CURIAM.
Warren William Lovell appeals from his sentence following
resentencing for two counts of incest. In August 2012, Lovell was
charged with two counts of sexual abuse in the third degree and pled
guilty to two counts of incest, in violation of Iowa Code section
726.2 (2011). The district court sentenced Lovell to two consecutive
terms of incarceration not to exceed five years, but during sentencing
relied upon the unproven allegation that Lovell paid the victim money in
exchange for sex. Lovell appealed. We granted a summary reversal and
remanded the case for resentencing before a different judge on the
grounds the district court had relied upon an improper sentencing
consideration.
Upon resentencing, the district court again sentenced Lovell to two
consecutive terms of incarceration not to exceed five years, but in doing
so again referred to the impermissible sentencing factor stating,
Well, Mr. Lovell, the problem with your case is, although you
have a lack of criminal history, this is extremely offensive,
obviously, in the eyes of the law, and in the eyes of the Court
because [the victim] was in a vulnerable position. . . . In
reading the case, she is desperate for diapers for her baby,
and then, for sex, you’re giving her money.
When Lovell’s attorney informed the district court that reference to the
same impermissible sentencing factor was the reason the case was
remanded for resentencing, the district court attempted to disclaim such
reference by saying, “Right, and I’m not relying on that, which it’s in the
Minutes of Testimony, but I guess, he didn’t plead guilty to that.” The
district court continued, “Okay. Well, it’s incest, and it’s offensive to the
Court.”
The law is clear regarding consideration of impermissible
sentencing factors. We will not vacate a sentence on appeal “unless the
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defendant demonstrates an abuse of trial court discretion or a defect in
the sentencing procedure such as the trial court’s consideration of
impermissible factors.” State v. Witham, 583 N.W.2d 677, 678 (Iowa
1998). However, “[i]f a court in determining a sentence uses any
improper consideration, resentencing of the defendant is required,” even
if it was “merely a ‘secondary consideration.’ ” State v. Grandberry, 619
N.W.2d 399, 401 (Iowa 2000) (quoting State v. Messer, 306 N.W.2d 731,
733 (Iowa 1981)). Information contained in the minutes of testimony is
not a permissible sentencing consideration if unproven. “The sentencing
court should only consider those facts contained in the minutes [of
testimony] that are admitted to or otherwise established as true.” State
v. Black, 324 N.W.2d 313, 316 (Iowa 1982); see also State v. Gonzalez,
582 N.W.2d 515, 517 (Iowa 1998) (“Where portions of the minutes [of
testimony] are not necessary to establish a factual basis for a plea, they
are deemed denied by the defendant and are otherwise unproved and a
sentencing court cannot consider or rely on them.”).
Here, although the district court attempted to disclaim the
reference to the impermissible sentencing factor, “we cannot speculate
about the weight the sentencing court gave to these unknown
circumstances. Since we cannot evaluate their influence, we must strike
down the sentence.” Black, 324 N.W.2d at 316. In order to protect the
integrity of our judicial system from the appearance of impropriety, we
vacate the defendant’s sentence and remand the case to the district court
for resentencing before a different judge consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING.
This opinion shall be published.