STATE OF IOWA, Plaintiff - Appellee, vs. DEREK ISIAH COLLIER, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-833 / 08-0165
Filed October 29, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEREK ISIAH COLLIER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, David M. Remley,
Judge.
Defendant seeks resentencing alleging the trial court considered factors
outside the record.
SENTENCE VACATED
AND REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Connie S. Ricklefs, County Attorney, and Phil Parsons, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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EISENHAUER, J.
In October 2007, Derek Collier filed a written guilty plea to assault causing
bodily injury. In January 2008, Collier filed a written guilty plea to assault with
intent to cause serious injury. Both pleas were based on the same incident in
which two victims were assaulted by Collier and Shawn Walker.
A sentencing hearing was held on January 18, 2008.
Collier was
sentenced to 365 days in jail and fined for assault causing injury. Collier also
was sentenced to an indeterminate two-year term of imprisonment and fined for
assault with intent to cause serious injury. The court ordered the sentences to
run consecutively.
Collier appeals arguing the sentences should be vacated and the case
remanded for resentencing. Collier contends the sentencing court considered
facts from Shawn Walker’s trial when determining Collier’s sentence.
The State argues Collier failed to preserve error by not objecting to the
court’s alleged reliance of facts outside the record. The State’s claim is without
merit.
Ordinary preservation-of-error principles do not apply in a sentencing
context. See State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998).
Our review of sentencing decisions is for correction of errors at law. Id. In
order to vacate his sentence, Collier must prove an abuse of trial court discretion
or a defect in the sentencing procedure such as consideration of impermissible
factors. See State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). Because a
sentencing decision “enjoys a strong presumption in its favor,” Collier “must
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affirmatively show that the district court relied on improper evidence such as
unproven charges.” See State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).
Noting the sentencing judge also presided over Shawn Walker’s trial,
Collier argues the district court’s statements concerning the permanency of one
victim’s injuries and its statements concerning Collier actively encouraging
Walker to attack the victim are outside his factual record.
To support his
challenge to the sentences imposed, Collier references the court’s statement in
response to his attorney asking for the source of the court’s factual findings:
“That information came from the Walker trial, at least some of it did. Some of it
may be duplicated in the – in some of the filings in this case also.”
We conclude the court’s explanation reveals it improperly considered facts
outside Collier’s case record. We are not free to “speculate about the weight the
trial court mentally assigned to [the improper factors].” State v Messer, 306
N.W.2d 731, 733 (Iowa 1981). If a court uses any improper consideration in
determining a sentence, resentencing is required. Grandberry, 619 N.W.2d at
401. This is true even if the improper factors are a “secondary consideration.”
Id.
Consideration of information obtained from the Walker trial that is not
included in the Collier record requires a remand for resentencing.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
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