State of Iowa v. Victor Cole Swai

CourtCourt of Appeals of Iowa
DecidedSeptember 17, 2025
Docket25-0283
StatusPublished

This text of State of Iowa v. Victor Cole Swai (State of Iowa v. Victor Cole Swai) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Iowa v. Victor Cole Swai, (iowactapp 2025).

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 25-0283 Filed September 17, 2025

STATE OF IOWA, Plaintiff-Appellee,

vs.

VICTOR COLE SWAI, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County,

Karen Kaufman Salic, Judge.

Victor Swai appeals his sentence for assault causing bodily injury.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Allison Linafelter, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Adam Kenworthy, Assistant Attorney

General, for appellee.

Considered by without oral argument by Greer, P.J., and Badding and

Chicchelly, JJ. 2

CHICCHELLY, Judge.

Victor Swai appeals his sentence following his guilty plea to assault causing

bodily injury. He alleges the district court (1) considered improper sentencing

factors and (2) did not explain its reasons for the sentence imposed. Because we

find no abuse of discretion, we affirm.

I. Background Facts and Proceedings

On July 2, 2024, Swai followed two individuals in his car to a park in Mason

City. Once the individuals stopped, Swai exited his car and yelled a threat at one

of the young men in the other car. A fight ensued between Swai and one of the

men. Swai punched the man in the face. The man went to the hospital as his

teeth were broken and falling out, he was throwing up blood, and he had a

concussion. The State filed a trial information charging Swai with assault causing

bodily injury in violation of Iowa Code sections 708.1(2) and 708.2(2) (2024).

Swai pleaded guilty as charged in the trial information. In his guilty plea, he

admitted:

On or about July 2nd, 2024, in this county, I did the following: I did an act, without justification, which was intended to result in physical contact which would be insulting or offensive to another, coupled with the apparent ability to execute the act; or an act which was intended to place another in fear of immediate physical contact which would be painful, injurious, insulting, or offensive coupled with the apparent ability to execute the act. My act caused bodily injury.

As part of the written guilty plea, Swai agreed the district court could consider the

minutes of testimony to support the factual basis for the guilty plea. At sentencing,

Swai requested a deferred judgment, and the State asked the court to impose one

year in the Cerro Gordo County Jail with all but seven days suspended and one 3

year of probation. The district court declined Swai’s request for a deferred

judgment by stating:

I’m not sure what brought this situation about, okay? But your decision or momentary thing, or, you know, however it was termed here has lasting implications for other people, not just, you know, recovering from the pain of it, but things that could last forever, like not having teeth. I’ve heard absolutely no justification for this whatsoever, and, to be honest, anything that I could hear would not justify it. You cannot interact with people this way. I know that you’re young; I know that from an adult criminal history you don’t have anything previously, but this goes beyond a lapse of judgment. You know, you jumped a kid in the wherever you were, the park, and inflicted some pretty significant injuries here. That is unacceptable, and I understand all the reasons that you want to ask for a deferred judgment, but I’m not granting it. It’s not appropriate.

The district court imposed the one-year jail term with all but seven days suspended

but allowed Swai to serve his term on weekends. The court also imposed a two-

year term of probation. Swai filed a timely appeal.1

II. Discussion

a. Improper Sentencing Factors

We review a district court’s discretionary sentencing decisions for an abuse

of discretion. See State v. Gordon, 998 N.W.2d 859, 862 (Iowa 2023). The district

court’s decision “to impose a particular sentence within the statutory limits is

cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d 720,

724 (Iowa 2002). And “our task on appeal is not to second guess the decision

1 As a preliminary matter, the right of appeal is limited for convictions reached

pursuant to a plea agreement. See Iowa Code § 814.6(1)(a)(3). However, the parties agree, and we find there is good cause for appeal from discretionary sentence rather than the guilty plea. See State v. Boldon, 954 N.W.2d 62, 69 (Iowa 2021). 4

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

untenable grounds.” Id. at 725.

A court cannot consider unproven facts or unprosecuted offenses in

fashioning a defendant’s sentence. State v. Schooley, 13 N.W.3d 608, 616

(Iowa 2024). This includes the information in the minutes of testimony unless the

facts “are admitted to or otherwise established as true.” State v. Lovell, 857

N.W.2d 241, 243 (Iowa 2014). “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.” State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998). Swai has

the burden to “show that the sentencing court relied on improper evidence.” State

v. Wickes, 910 N.W.2d 554, 572 (Iowa 2018).

Swai argues the district court considered improper sentencing factors

because it considered the minutes of testimony’s description of the victim’s injuries

and described them as “significant.” He contends the district court could not

consider the exact nature of the injuries and, after its review of the minutes of

testimony, implied they were serious injuries. But “‘[s]erious injury’ is a term of art

in Iowa criminal law.” State v. Carter, No. 13-0484, 2014 WL 69755, at *2 (Iowa

Ct. App. Jan. 9, 2014). Iowa Code section 702.18 defines it as either a “disabling

mental illness” or “bodily injury which does any of the following: (1) Creates a

substantial risk of death[;] (2) Causes serious permanent disfigurement[; or]

(3) Causes protracted loss or impairment of the function of any bodily member or

organ.” Significant injury is not similarly defined. 5

Swai advances this argument relying on two of our unpublished cases. See

State v. Cubbage, No. 23-1156, 2024 WL 2043156, at *3 (Iowa Ct. App.

May 8, 2024); Carter, 2014 WL 69755, at *3. In both cases the defendant was

charged with willful injury causing serious injury and entered a guilty plea to willful

injury causing bodily injury. The district court referred to “serious injury” several

times during the sentencing hearings. In those circumstances, we reversed

because a district court cannot rely on unproven and unprosecuted charges

“unless the defendant admits them or facts are presented to prove them.” State v.

Fetner, 959 N.W.2d 129, 135 (Iowa 2021). We find Swai has not made a sufficient

showing here.

First, Swai argues the district court should not have considered the nature

of the injuries in the minutes of testimony. But in his guilty plea, Swai consented

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Related

State v. Formaro
638 N.W.2d 720 (Supreme Court of Iowa, 2002)
State v. Gonzalez
582 N.W.2d 515 (Supreme Court of Iowa, 1998)
State of Iowa v. Warren William Lovell
857 N.W.2d 241 (Supreme Court of Iowa, 2014)
State of Iowa v. Tina Lynn Thacker
862 N.W.2d 402 (Supreme Court of Iowa, 2015)
State of Iowa v. Bradley Elroy Wickes
910 N.W.2d 554 (Supreme Court of Iowa, 2018)
State of Iowa v. Noah Riley Crooks
911 N.W.2d 153 (Supreme Court of Iowa, 2018)

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State of Iowa v. Victor Cole Swai, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-iowa-v-victor-cole-swai-iowactapp-2025.