State of Iowa v. Melvin Louis Burks

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 3-1248 / 13-0617 Filed February 5, 2014

STATE OF IOWA, Plaintiff-Appellee,

vs.

MELVIN LOUIS BURKS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Edward A.

Jacobson, Judge.

Appeal from the sentence imposed following a plea to conspiracy to

deliver a controlled substance. AFFIRMED.

Rees C. Douglas, Sioux City, for appellant.

Mark Campbell, Sioux City, for amicus curiae.

Thomas J. Miller, Attorney General, Mary Triick, Assistant Attorney

General, Patrick Jennings, County Attorney, and Amy Klocke, Assistant County

Attorney, for appellee.

Considered by Vogel, P.J., and Tabor and McDonald, JJ. 2

MCDONALD, J.

Melvin Burks pleaded guilty to conspiracy to deliver a controlled

substance, marijuana, in violation of Iowa Code section 124.401(1)(d) (2011). At

sentencing, the State recommended a suspended sentence. Burks requested a

deferred judgment. The sentencing court heard the testimony of two peace

officers, Burks’ statement in mitigation of his sentence, and the arguments of

counsel. The district court imposed a sentence of five years’ incarceration, with

said sentence to be suspended and defendant placed on probation. Burks

appeals his sentence.

Burks first argues the district court failed to state sufficient reasons for

imposition of the sentence. Iowa Rule of Criminal Procedure 2.23(d) requires the

sentencing court to “state on the record its reason for selecting a particular

sentence.” The reasons need not be detailed so long as the stated reasons are

sufficient to permit appellate review. See State v. Hennings, 791 N.W.2d 828,

838 (Iowa 2010); State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). Here, the

district court stated the reasons for its sentencing decision during the sentencing

hearing and in its written judgment and sentence. The reasons included:

allowing the maximum opportunity for rehabilitation of the defendant; protection

of the community from further offenses by the defendant; the defendant’s age,

prior record, employment circumstances, and family circumstances; the nature of

the offense; the contents of the presentence investigation; and “defendant’s lack

of remorse and responsibility for his actions.” The articulated reasons for

imposition of the sentence are sufficient to comply with rule 2.23(d). See State v. 3

Johnson, 445 N.W.2d 337, 343 (Iowa 1989) (stating the sentencing court’s

announced reasons may be terse, succinct, and brief and affirming imposition of

sentence where the reasons given were substantially similar to this case).

Burks also argues the court may have impermissibly considered an

unproven assault charge referenced by the prosecutor at the time of sentencing.

“A district court may not consider an unproven or unprosecuted offense when

sentencing a defendant unless (1) the facts before the court show the defendant

committed the offense, or (2) the defendant admits it.” State v. Jose, 636 N.W.2d

38, 41 (Iowa 2001). “Where the sentencing court improperly considered an

unprosecuted or unproven charge, we will remand the matter for resentencing.”

State v. Washington, 832 N.W.2d 650, 659 (Iowa 2013).

Burks does not point to any specific statement of the district court

demonstrating the district court considered the unproven assault charge. Indeed,

Burks states the “record is too thin to show whether or not the court illegally

relied upon” the unproven offense. The sentencing court’s decision enjoys a

strong presumption in its favor. Id. Burks’ speculation that the district court may

have considered the unproven assault charge is insufficient to overcome the

strong presumption in favor of the sentencing court’s decision. See id. (“To

overcome the presumption, a defendant must affirmatively show that the district

court relied on improper evidence such as unproven offenses.”); State v.

Formaro, 638 N.W.2d 720, 725 (Iowa 2002) (“We will not draw an inference of

improper sentencing considerations which are not apparent from the record.”);

State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998) (stating the defendant must 4

demonstrate that the sentencing court made a statement showing it actually

relied on an unproven conduct).

Furthermore, we disagree the record is “too thin” to determine the reasons

underlying the district court’s sentence. As set forth above, the district court

stated numerous reasons or factors supporting its decision. The district court

never referred to the unproven assault charge. The district court was not

required to explicitly negate the prosecutor’s reference to the unproven assault

charge. Nor was the district court required to explain why it did not find Burks’

statement in mitigation compelling enough to defer judgment. See State v.

Thomas, 547 N.W.2d 223, 225 (Iowa 1996) (“The sentencing court . . . is

generally not required to give its reasons for rejecting particular sentencing

options.”). The mere fact the sentencing court was aware of an improper

sentencing factor, such as an unproven charge, is not sufficient to overcome the

presumption it properly exercised its sentencing discretion. See State v. Ashley,

462 N.W.2d 279, 282 (Iowa 1990).

AFFIRMED.