STATE OF IOWA, Plaintiff-Appellee, vs. ALVARO V. DOZAL, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-758 / 06-0484
Filed October 25, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALVARO V. DOZAL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick,
Judge.
Alvaro Dozal appeals from the sentence entered on his two convictions of
third-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, William E. Davis, County Attorney, Robert Cusack, Assistant County
Attorney and Robert Weinberg, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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SACKETT, C.J.
Alvaro Dozal appeals the sentence imposed following his conviction of two
counts of third-degree sexual abuse in violation of Iowa Code section 709.4
(2005). He contends the district court considered improper factors in sentencing
him. We affirm.
Dozal was initially charged by trial information with two counts of seconddegree sexual abuse. Pursuant to a plea agreement, the State amended its trial
information to include an additional two counts of third-degree sexual abuse.
Dozal pled guilty to two charges of third-degree sexual abuse.
charges were dismissed.
The other
The district court sentenced Dozal to a term of
imprisonment not to exceed ten years and a $1,000 fine on each count. The
court ordered the sentences to be served consecutively.
In sentencing him, Dozal contends the district court improperly considered
unproven charges of sexual abuse. Specifically, he claims that when ordering
his sentences to run consecutively, the court relied on allegations in the
Presentence Investigation Report (PSI) of multiple acts of sexual abuse from
1998 through 2002. To support his argument, he points to comments made by
the court during sentencing noting “multiple occasions” of sexual abuse and
referring to him as a “pedophile.”
The State contends the trial court’s statements alluded specifically to the
two offenses to which Dozal pled guilty. It asserts that Dozal did not object to a
reference of pedophile or other information contained in the PSI. The State did
not indicate where these references were made in the PSI, and we do not find
them.
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We review a sentence imposed by the district court for correction of errors
at law.
State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
We will only
overturn the district court for abuse of discretion or the consideration of improper
factors in sentencing. State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983) (citing
State v. Gartin, 271 N.W.2d 902, 910 (Iowa 1978)). If the district court relied on
improper factors, we will remand the case for resentencing. State v. Black, 324
N.W.2d 313, 315 (Iowa 1982).
A sentencing court may not rely upon unproven or unprosecuted charges
unless the facts show the defendant committed the offenses or the defendant
admits to them. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). It is the
defendant’s burden to affirmatively show the court relied upon the unproven
offenses. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001); State v. Sailer, 587
N.W.2d 756, 762 (Iowa 1998). Dozal points to the statements made by the court
at his sentencing hearing referring to “multiple occasions” of victimization and
“repeated sexual abuse” and defining him as a “pedophile” as evidence that the
court relied on unproven charges.
There was no error in the court’s statements referring to “multiple
occasions” of victimization and “repeated sexual abuse.” Dozal pled guilty to two
counts that charged him with committing third-degree sexual abuse dating
between 1998 and 2003.
Nor was there error in referring to Dozal as a
pedophile. Black’s Law Dictionary defines “pedophile” as “an adult who engages
in pedophilia,” and “pedophilia” is defined as “an adult act of child molestation.”
BLACK’S LAW DICTIONARY 1167 (8th ed. 2004). The record before the trial court
clearly supports a finding that Dozal was a pedophile.
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Furthermore, the district court may consider any portion of the PSI not
challenged by the defendant when determining an appropriate sentence. State
v. Grandberry, 619 N.W.2d 399, 402 (Iowa Ct. App. 2000). The official statement
in the PSI indicates a history of sexual abuse committed by Dozal over a fouryear period. Dozal did not challenge the accuracy of any portion of the PSI; in
fact, his own statement admits the sexual abuse. This constitutes “sufficient
facts” from which the district court could consider the other abuse allegations.
See State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998) (finding the
unchallenged PSI mental history portion “constituted sufficient facts from which
the sentencing court could consider the defendant’s prior sexual abuse”). Thus,
even if the district court relied on the allegations in the PSI, it was justified in
doing so.
AFFIRMED.
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