IN THE COURT OF APPEALS OF IOWA
No. 24-1150 Filed February 19, 2025
STATE OF IOWA, Plaintiff-Appellee,
vs.
SHEVELL EARL ASH, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb, Judge.
A defendant appeals his sentence for domestic abuse assault, second
offense. AFFIRMED.
Audra F. Saunders, West Des Moines, for appellant.
Brenna Bird, Attorney General, and Adam Kenworthy, Assistant Attorney
General, for appellee State.
Considered by Greer, P.J., and Buller and Langholz, JJ. 2
LANGHOLZ, Judge.
Shevell Ash appeals his two-year prison sentence imposed after he pleaded
guilty to domestic abuse assault, second offense. He argues that the district court
improperly considered unproven criminal conduct when it factored in that this
assault and multiple jail phone calls were violations of a no-contact order issued
because of his previous conviction for assaulting the same victim. And he
contends that the court should have suspended his sentence and placed him on
probation rather than imposing the two-year prison sentence.
The court indeed relied on the conduct Ash challenges on appeal in
selecting his sentence. But it was not unproven. The State presented sworn
testimony and a recording of the phone calls at the sentencing hearing—ample
evidence to support the court’s finding that Ash had violated the court order. And
we see no abuse of discretion in the district court’s ultimate sentencing decision.
We thus affirm Ash’s sentence.
I. Background Facts and Proceedings
Ash was convicted in October 2023 for assaulting the mother of his son.
Because of that domestic-abuse-assault conviction, the court issued a no-contact
order prohibiting Ash’s contact with the victim. But five months later, he assaulted
her again—as he admitted in his later plea—“by intentionally pulling her sweatshirt
in a manner that would have been offensive and put her in fear of immediate
contact that would have been painful or injurious.” He was originally charged with
other offenses too. But as part of a plea agreement, he pleaded guilty to only the
single aggravated misdemeanor of domestic abuse assault, second offense. See
Iowa Code §§ 708.1, 236.2, 708.2A(1), (3)(b) (2024). 3
At sentencing, twenty-year-old Ash expressed remorse for his behavior and
then asked for another chance to do better and be present for his son. His attorney
thus urged the court to impose a suspended sentence and probation. The State
argued for a two-year prison sentence. And in support, it called a detective from
the West Des Moines Police Department who testified that the victim in this case
was the protected party of a no-contact order against Ash and that she was the
same victim as in Ash’s earlier domestic-abuse-assault conviction that led to that
protective order. The detective also testified that while Ash was in jail before his
guilty plea, he called the victim through the jail phone system at least three times
in violation of the no-contact order. And a recording of one of those calls—in which
Ash pressured the victim that “[e]verything that you spoke on needs to go
Houdini”—was admitted into evidence. The district court agreed with the State and
imposed a two-year prison sentence. Ash now appeals.
II. Consideration of No-Contact Order Violations
A district court “cannot consider unproven or unprosecuted offenses in
fashioning a defendant’s sentence unless the defendant admits them or facts are
presented to prove them.” State v. Schooley, 13 N.W.3d 608, 616 (Iowa 2024)
(cleaned up). Relying on an improper consideration in sentencing is an abuse of
discretion that requires resentencing, “even if it was merely a secondary
consideration.” Id. at 618 (cleaned up). But a defendant has the burden to “show
that the sentencing court relied on improper evidence.” State v. Wickes, 910
N.W.2d 554, 572 (Iowa 2018).
“When a challenge is made to a criminal sentence on the basis that the
court improperly considered unproven criminal activity, the issue presented is 4
simply one of the sufficiency of the record to establish the matters relied on.”
Schooley, 13 N.W.3d at 618 (cleaned up); see also State v. Longo, 608
N.W.2d 471, 474–75 (Iowa 2000) (holding that district court could rely on its
conclusion that the defendant engaged in criminal offense on which the jury did
not convict “[b]ased on sworn testimony that the judge had heard,” reasoning that
“[t]here is no general prohibition against considering other criminal activities by a
defendant as factors that bear on the sentence to be imposed”); State v. Fetner,
959 N.W.2d 129, 135–36 (Iowa 2021) (holding that court properly consider criminal
activity admitted in defense counsel’s statements at sentencing left uncorrected by
defendant but improperly speculated about related activity unsupported by any
“facts before the court”).
Ash argues that the district court improperly considered unproven
offenses—Ash’s violations of the no-contact order prohibiting him from contacting
the victim of this assault. True, the court did consider Ash’s violations of the no-
contact order in selecting its sentence. The court explained that it was troubled by
Ash’s inability to “abid[e] by the rules of the Court,” and that it considered the
conduct “not [as] an issue of punishment for those events” but for “what those acts
tell the Court about the defendant’s ability to be successful” on probation.
But this conduct was not unproven. The State presented sworn testimony
that Ash’s assault for which he was being sentenced was a violation of a no-contact
order protecting the victim entered after Ash’s first assault of that victim. So too
did it present testimony that he violated the no-contact order while this case was
pending by repeatedly calling the victim. And it submitted a recording of one of
those calls urging her to “Houdini” her reports of his conduct. This evidence was 5
sufficient to establish the conduct that the district court relied on when considering
Ash’s ability to comply with court orders while on a potential probation sentence.
See Longo, 608 N.W.2d at 474. The court did not improperly consider this conduct.
III. Selection of Sentence
We review a district court’s discretionary sentencing decisions, including its
exercise of discretion whether to suspend a sentence, for an abuse of discretion.
See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). This deferential
standard of review recognizes that the court’s decision “to impose a particular
sentence within the statutory limits is cloaked with a strong presumption in its
favor.” Id. And even when the court would have been justified in imposing the
sentence the defendant sought, “our 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.
Ash argues that “based on his prior history, age, maturity level and criminal
history, a prison sentence was not warranted.” Essentially, he contends that the
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IN THE COURT OF APPEALS OF IOWA
No. 24-1150 Filed February 19, 2025
STATE OF IOWA, Plaintiff-Appellee,
vs.
SHEVELL EARL ASH, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb, Judge.
A defendant appeals his sentence for domestic abuse assault, second
offense. AFFIRMED.
Audra F. Saunders, West Des Moines, for appellant.
Brenna Bird, Attorney General, and Adam Kenworthy, Assistant Attorney
General, for appellee State.
Considered by Greer, P.J., and Buller and Langholz, JJ. 2
LANGHOLZ, Judge.
Shevell Ash appeals his two-year prison sentence imposed after he pleaded
guilty to domestic abuse assault, second offense. He argues that the district court
improperly considered unproven criminal conduct when it factored in that this
assault and multiple jail phone calls were violations of a no-contact order issued
because of his previous conviction for assaulting the same victim. And he
contends that the court should have suspended his sentence and placed him on
probation rather than imposing the two-year prison sentence.
The court indeed relied on the conduct Ash challenges on appeal in
selecting his sentence. But it was not unproven. The State presented sworn
testimony and a recording of the phone calls at the sentencing hearing—ample
evidence to support the court’s finding that Ash had violated the court order. And
we see no abuse of discretion in the district court’s ultimate sentencing decision.
We thus affirm Ash’s sentence.
I. Background Facts and Proceedings
Ash was convicted in October 2023 for assaulting the mother of his son.
Because of that domestic-abuse-assault conviction, the court issued a no-contact
order prohibiting Ash’s contact with the victim. But five months later, he assaulted
her again—as he admitted in his later plea—“by intentionally pulling her sweatshirt
in a manner that would have been offensive and put her in fear of immediate
contact that would have been painful or injurious.” He was originally charged with
other offenses too. But as part of a plea agreement, he pleaded guilty to only the
single aggravated misdemeanor of domestic abuse assault, second offense. See
Iowa Code §§ 708.1, 236.2, 708.2A(1), (3)(b) (2024). 3
At sentencing, twenty-year-old Ash expressed remorse for his behavior and
then asked for another chance to do better and be present for his son. His attorney
thus urged the court to impose a suspended sentence and probation. The State
argued for a two-year prison sentence. And in support, it called a detective from
the West Des Moines Police Department who testified that the victim in this case
was the protected party of a no-contact order against Ash and that she was the
same victim as in Ash’s earlier domestic-abuse-assault conviction that led to that
protective order. The detective also testified that while Ash was in jail before his
guilty plea, he called the victim through the jail phone system at least three times
in violation of the no-contact order. And a recording of one of those calls—in which
Ash pressured the victim that “[e]verything that you spoke on needs to go
Houdini”—was admitted into evidence. The district court agreed with the State and
imposed a two-year prison sentence. Ash now appeals.
II. Consideration of No-Contact Order Violations
A district court “cannot consider unproven or unprosecuted offenses in
fashioning a defendant’s sentence unless the defendant admits them or facts are
presented to prove them.” State v. Schooley, 13 N.W.3d 608, 616 (Iowa 2024)
(cleaned up). Relying on an improper consideration in sentencing is an abuse of
discretion that requires resentencing, “even if it was merely a secondary
consideration.” Id. at 618 (cleaned up). But a defendant has the burden to “show
that the sentencing court relied on improper evidence.” State v. Wickes, 910
N.W.2d 554, 572 (Iowa 2018).
“When a challenge is made to a criminal sentence on the basis that the
court improperly considered unproven criminal activity, the issue presented is 4
simply one of the sufficiency of the record to establish the matters relied on.”
Schooley, 13 N.W.3d at 618 (cleaned up); see also State v. Longo, 608
N.W.2d 471, 474–75 (Iowa 2000) (holding that district court could rely on its
conclusion that the defendant engaged in criminal offense on which the jury did
not convict “[b]ased on sworn testimony that the judge had heard,” reasoning that
“[t]here is no general prohibition against considering other criminal activities by a
defendant as factors that bear on the sentence to be imposed”); State v. Fetner,
959 N.W.2d 129, 135–36 (Iowa 2021) (holding that court properly consider criminal
activity admitted in defense counsel’s statements at sentencing left uncorrected by
defendant but improperly speculated about related activity unsupported by any
“facts before the court”).
Ash argues that the district court improperly considered unproven
offenses—Ash’s violations of the no-contact order prohibiting him from contacting
the victim of this assault. True, the court did consider Ash’s violations of the no-
contact order in selecting its sentence. The court explained that it was troubled by
Ash’s inability to “abid[e] by the rules of the Court,” and that it considered the
conduct “not [as] an issue of punishment for those events” but for “what those acts
tell the Court about the defendant’s ability to be successful” on probation.
But this conduct was not unproven. The State presented sworn testimony
that Ash’s assault for which he was being sentenced was a violation of a no-contact
order protecting the victim entered after Ash’s first assault of that victim. So too
did it present testimony that he violated the no-contact order while this case was
pending by repeatedly calling the victim. And it submitted a recording of one of
those calls urging her to “Houdini” her reports of his conduct. This evidence was 5
sufficient to establish the conduct that the district court relied on when considering
Ash’s ability to comply with court orders while on a potential probation sentence.
See Longo, 608 N.W.2d at 474. The court did not improperly consider this conduct.
III. Selection of Sentence
We review a district court’s discretionary sentencing decisions, including its
exercise of discretion whether to suspend a sentence, for an abuse of discretion.
See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). This deferential
standard of review recognizes that the court’s decision “to impose a particular
sentence within the statutory limits is cloaked with a strong presumption in its
favor.” Id. And even when the court would have been justified in imposing the
sentence the defendant sought, “our 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.
Ash argues that “based on his prior history, age, maturity level and criminal
history, a prison sentence was not warranted.” Essentially, he contends that the
court should have weighed the sentencing factors differently to conclude that a
suspended sentence was appropriate. See Iowa Code § 901.5. But that is not the
issue we decide on appeal. See State v. Gordon, 998 N.W.2d 859, 863
(Iowa 2023) (“The test for whether a sentencing court abused its discretion is not
whether we might have weighed the various factors differently.”). Ash fails to point
to any unreasonable or untenable grounds. See id. And we see none in the district
court’s thoughtful explanation of why it considered but rejected Ash’s arguments
for a suspended sentence: 6
What the Court is concerned with at this point is imposing a sentence that I think will provide the most benefit to both society and community as well as benefit to the defendant. The concern of the Court is the defendant’s ability to be successful on probation, and being successful on probation means abiding by the rules of the Court, which honestly the defendant has not shown an ability to do, which reflects in my mind a disrespect or an idea that it somehow doesn’t apply to him. .... I appreciate that the time he spent in jail has had an effect on him. I think it would have an effect on anybody. I question whether that effect will continue upon release, and I don’t have specific behavior presented to me that suggests that is going to be the case. The victim in this case was an intimate partner, mother of his child, and that did not affect his behavior to not assault her. I think that the defendant has to understand the consequences, and I am looking to impose a sentence that will do that, that will effect a change in behavior.
Because the district court did not abuse its discretion in exercising this sentencing
judgment, we affirm Ash’s sentence.
AFFIRMED.