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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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
to the district court’s use of the minutes of testimony to determine if a factual basis
existed. The description of the victim’s injuries in the minutes of testimony was
necessary to establish a factual basis for the bodily injury element of the assault
charge. As a result, the court could consider those injuries in sentencing Swai.
See Gonzalez, 582 N.W.2d at 517.
Second, we find Swai has not established the district court considered
improper factors. The district court told Swai he “inflicted some pretty significant
injuries here.” Swai has not carried his burden to show “significant” is being used
as a facsimile for “serious.” The district court’s comment can be reasonably
interpreted to describe the bodily injury Swai inflicted. We find the district court did
not rely on improper sentencing factors. 6
b. Explanation of Sentence
Next, Swai alleges the district court failed to adequately explain its
sentencing decision. This argument also fails as “a sentencing court need only
explain its reasons for selecting the sentence imposed and need not explain its
reasons for rejecting a particular sentencing option.” State v. Crooks, 911
N.W.2d 153, 171 (Iowa 2018) (citation omitted). The district court’s reasons for a
particular sentence may be “terse and succinct” if “the reasons for the exercise of
discretion are obvious in light of the statement and the record before the court.”
State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015).
At the sentencing hearing, the district court made the following statement
prior to announcing its sentence:
Mr. Swai, at the time of sentencing I’m required to impose a sentence that I feel is appropriate to meet your needs for rehabilitation and also to do what’s necessary to protect the community and your specific victim from further offenses by you or by others. A number of things factor into that: Your age; any prior criminal history; your employment, family, and personal circumstances I’ve been made aware of; the nature of the offense; the recommendation of the parties; and anything else I’ve learned about you throughout the proceedings.
The district court provided sufficient explanation of the reasons selecting Swai’s
sentence to show it properly exercised its discretion. See Formaro, 638 N.W.2d
at 724–25.
III. Conclusion
Because we find the district court did not consider an improper sentencing
factor and gave adequate explanation for its sentence, we affirm.