State of Iowa v. Shevell Earl Ash

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.
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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).
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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
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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
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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:
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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.