State of Iowa v. David Lee Polkinghorn

• Court: Court of Appeals of Iowa
• Decided: July 3, 2024
• Docket: 23-1649
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1649 Filed July 3, 2024

STATE OF IOWA, Plaintiff-Appellee,

vs.

DAVID LEE POLKINGHORN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Robert J. Richter,

Judge.

A criminal defendant appeals, challenging the district court’s consideration

of his criminal history. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart (until

withdrawal) and Vidhya K. Reddy, Assistant Appellate Defenders, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers (until withdrawal)

and Joshua A. Duden, Assistant Attorneys General, for appellee.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ. 2

BULLER, Judge.

Dave Lee Polkinghorn scratched his ex-girlfriend’s car with his keys,

causing more than $750 but less than $1500 in damage. He pled guilty to criminal

mischief in the third degree, an aggravated misdemeanor in violation of Iowa Code

section 716.5 (2022).

At sentencing, the State and Polkinghorn both recommended a sentence of

365 days in jail with 360 days suspended. The sentencing court departed from the

parties’ recommendation and imposed a 360-day jail sentence with 340 days

suspended and formal probation—in other words, imposing twenty days in jail

instead of five and more-structured probation, compared to the joint

recommendation. In its explanation of reasons for sentence, the court relied in

part on Polkinghorn’s “criminal history where [he was] convicted of criminal

mischief before” and his failure to rehabilitate on a past suspended sentence. The

court specifically indicated it was not considering any unproven charges, such as

those referenced in a victim impact statement. In response to this sentence,

Polkinghorn told the judge he should have requested they “gas the bus up,”

speculating he would do less time in prison.

Polkinghorn appeals, challenging only his sentence. “[T]he decision of the

district court to impose a particular 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). “[O]ur task on appeal is not to second guess the

decision made by the district court, but to determine if it was unreasonable or

based on untenable grounds.” Id. at 725. 3

Polkinghorn’s appellate claim is narrow, urging the sentencing court erred

by considering his criminal history—which he contends was outside the record.

But, as the State points out, this information was in the record: Polkinghorn’s

criminal history was filed on the online docket before sentencing and he did not

move to strike, object, or otherwise contest it. And even on appeal, he does not

assert the criminal-history information was erroneous in any way.

We first consider whether error was preserved. Although the State does

not contest error preservation, we must consider it nonetheless. See Top of Iowa

Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (en banc) (“[T]his

court will consider on appeal whether error was preserved despite the opposing

party’s omission in not raising this issue at trial or on appeal.”). This is in part

because, pursuant to the Iowa Constitution and state statutes, we are a “court for

the correction of errors at law,” and “[i]f an issue was never presented to the district

court to rule on, and if the district court did not in fact rule on it, we lack any ‘error’

to correct.” State v. Gomez Medina, __ N.W.3d ___, ___, 2024 WL 2471824, at *5

(Iowa 2024) (citing Iowa Const. art. V, § 4); see also Iowa Code § 602.5103.

No Iowa case law appears to directly answer the error-preservation

question here—whether an objection must be made to a written criminal history

filed outside a presentence investigation (PSI) report. In both our published and

unpublished cases, we have noted in passing that criminal history was presented

to the judge in some fashion, presumably without objection and possibly as part of

a local custom. See, e.g., State v. Schlachter, 884 N.W.2d 782, 786 (Iowa Ct.

App. 2016) (“The county attorney did recite Schlachter’s criminal record, which is

not uncommon when no PSI is available, as was the case in this proceeding.”); 4

State v. Axiotis, No. 11-1816, 2012 WL 3196007, at *2 (Iowa Ct. App. Aug. 8, 2012)

(“It is unclear . . . whether in those circumstances when there is no presentence

investigation report, the [local] court had a custom or requirement that the

prosecutor recite a defendant’s criminal history.”); State v. Smith, No. 04-0241,

2004 WL 2296708, at *1 (Iowa Ct. App. Oct. 14, 2004) (implicitly finding the State’s

offer of the defendant’s criminal history fell within the statutory provision of

information to sentencing judges found in Iowa Code section 901.2(1)). We have

also expressly commended that, in a case with no PSI, the “better practice” is

ordinarily for the State to provide a “written copy of the defendant’s criminal history”

rather than recite it orally. See State v. Alexander, No. 17-1742, 2018

WL 3057620, at *3 n.3 (Iowa Ct. App. June 20, 2018). Following the implicit

reasoning of these cases and recognizing this is a common practice, we hold that

a criminal defendant must advance an objection below to preserve error on a

complaint about how his criminal history was presented to the sentencing court.

This conclusion is not at odds with other sentencing case law, as controlling

precedent requires objections to a sentencing procedure be made “at the earliest

opportunity after the grounds for the objection become apparent.” Tindell v. State,

629 N.W.2d 357, 359 (Iowa 2001). This is distinct from other sentencing

challenges with lessened error-preservation requirements where we do not require

defendants to object mid-stream as a judge exercises her discretion and

announces reasons for sentencing. See State v. Gordon, 921 N.W.2d 19, 22–23

(Iowa 2018) (collecting cases). The issue here is that Polkinghorn objects to how

his criminal history was made part of the record—a procedural challenge

constrained by Tindell and its progeny. 5

Even if we came out the other way on the error-preservation question, we

would affirm on the merits. “[A] sentencing court has a right to know a defendant’s

criminal record prior to sentencing.” Schlachter, 884 N.W.2d at 786; see Iowa

Code § 901.2(1) (“[T]he court shall receive from the state . . . any information which

may be offered which is relevant to the question of sentencing.”). And we find

submitting a defendant’s criminal history in writing is no different—and perhaps

more reliable—than if the State recited the prior convictions at sentencing as part

of its recommendation. See State v. Jose, 636 N.W.2d 38, 41–42 (Iowa 2001)

(finding the sentencing court did not consider unproven criminal history when the

State “highlighted” prior convictions at sentencing and the defendant did not

contest them); Alexander, 2018 WL 3057620, at *3 n.3. In this particular case,

what the parties refer to as “criminal history” is a printed search return from the

National Crime Information Center (better known as “NCIC”), which negates any

concern we might have about reliability.

In sum, we find Polkinghorn failed to preserve error on his procedural

challenge to the written criminal history and we note he would not be entitled to

relief even if he had preserved error.

AFFIRMED.