State of Iowa v. Alfredo Lorenzo Pena

IN THE COURT OF APPEALS OF IOWA
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No. 25-0585
Filed February 11, 2026
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State of Iowa,
Plaintiff–Appellee,
v.
Alfredo Lorenzo Pena,
Defendant–Appellant.
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Appeal from the Iowa District Court for Polk County,
The Honorable Gregory D. Brandt, Judge.
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AFFIRMED
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Katherine R.J. Scott of New Point Law Firm, PLC, Ames, attorney for
appellant.

Brenna Bird, Attorney General, and David Banta, Assistant Attorney
General, attorneys for appellee.
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Considered without oral argument
by Tabor, C.J., Langholz, J., and Bower, S.J.
Opinion by Langholz, J.

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LANGHOLZ, Judge.

While on probation for his second operating-while-intoxicated
conviction, Alfredo Lorenzo Pena again operated a motor vehicle while
intoxicated. He pleaded guilty to operating while intoxicated, second offense,
pursuant to a plea agreement that the parties would recommend probation
and a two-year indeterminate prison sentence with all but forty-two days
already served suspended. Lorenzo Pena requested immediate sentencing.
But as the district court was about to impose sentence, it explained:
Well, I don’t know why I would possibly keep you on probation, when
you’re on probation for an OWI second, which one of the conditions is,
you’re not even supposed to be consuming alcohol, and then you go and
consume alcohol and get arrested again for another OWI. So, I don’t, quite
honestly, understand the recommendations of the parties in this matter, I
do not see how they are remotely appropriate in this particular case.

Still, the court offered that if Lorenzo Pena wanted to postpone completing
sentencing for one week so that his attorney could “get the recommendation
from the probation officer, I’d be interested to see what they have to say, but
short of that, I don’t know why I would possibly keep your client on
probation.” Lorenzo Pena agreed. And his attorney told the court that he
would “reach out to his probation officer, see if they are still willing to work
with him, [and] get that information to the Court.”

A week later, the sentencing continued. Lorenzo Pena’s attorney
informed the court:
As you’re aware, we did make our arguments last week, the matter was
continued to get the position on probation, regarding their willingness to
work with Mr. Lorenzo Pena, again.

On March 3rd, I did reach out to his probation officer . . . [and] she replied
that they were no longer willing to work with him, as he’d been absconded
for almost a year, entertain [sic] the new OWI charge pending.

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The State stood by its recommendation despite this new information.
And the court then asked, “Mr. Lorenzo Pena, anything you’d like to say
prior to The Court imposing sentence?” And Lorenzo Pena answered, “No.”
The court then reasoned:
Well, Sir, you are currently on probation for an OWI Second Offense
charge, according to your probation officer, you have been absconded on
that probation for almost a year, and in the process, picked up a new charge
of Operating a Motor Vehicle Under the Influence, Second Offense. I do
not see any reason why another probation would be appropriate in this
particular case since you did not avail yourself of the opportunity for
probation in the first case.

And so, the court sentenced Lorenzo Pena to a two-year indeterminate prison
sentence with credit for his time already served.

Lorenzo Pena now appeals his sentence, arguing that the district court
(1) improperly considered unproven conduct when it relied on his attorney’s
statement about why the probation officer was unwilling to work with him
again; (2) violated Iowa Rule of Criminal Procedure 2.23(2)(b) by failing to
ask whether Lorenzo Pena had “any legal cause to show why judgment
should not be pronounced” before imposing sentence; and (3) violated Iowa
Code section 901.5(7) (2025) by failing to inform Lorenzo Pena of his
mandatory minimum sentence of seven days. His arguments all fail.

I. Consideration of Unproven Conduct.

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

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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 simply one of the sufficiency of the record to establish the matters relied
on.” Schooley, 13 N.W.3d at 618 (cleaned up). A court may properly consider
criminal conduct admitted on the record at sentencing by defense counsel
and left uncorrected by the defendant. See State v. Fetner, 959 N.W.2d 129,
135–36 (Iowa 2021). This is because “counsel’s statements on the record at
sentencing are akin to a professional statement,” which has “the effect of an
affidavit.” Id. at 135 (cleaned up).

Lorenzo Pena argues that the district court could not rely on his
counsel’s statement his probation officer was “no longer willing to work with
him, as he’d been absconded for almost a year.” But his counsel made that
statement on the record, without any added qualification that Lorenzo Pena
disagreed with the probation officer’s assertion that he had absconded for
nearly a year. And Lorenzo Pena did not correct the statement even though
he was given the chance immediately after to tell the court anything he
wanted. What’s more, he had agreed to a one-week delay in sentencing
expressly for the purpose of his counsel reaching out to the probation officer
and reporting back to the district court. Under these circumstances, the
district court could properly consider the statement about Lorenzo Pena’s
conduct. See id. at 135–36. The court did not abuse its discretion in doing so.

II. Compliance with Rule 2.23(2)(b).

Lorenzo Pena next argues that the district court failed to comply with
Iowa Rule of Criminal Procedure 2.23(2)(b). That rule provides: “When the
defendant appears for judgment, the court shall . . . ask whether the

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defendant has any legal cause to show why judgment should not be
pronounced.” Iowa R. Crim. P. 2.23(2)(b). And rather than asking that
precise question, the district court asked: “Mr. Lorenzo Pena, anything you’d
like to say prior to the Court imposing sentence?”

But the court’s version of the question still substantially complied with
rule 2.23(2)(b). See State v. Jackson-Douglass, 970 N.W.2d 252, 258
(Iowa 2022). Our supreme court has rejected Lorenzo Pena’s “hyperliteral
reading of the rules of procedure,” and has “repeatedly stated that the trial
court need not use the exact language in the rules of criminal procedure at
sentencing.” Id. “The important thing is whether the defendant is given an
opportunity to volunteer any information helpful to the defendant’s cause.”
Id. (cleaned up). And so, the supreme court has held that a district court
which asked “Is there anything you would like to say to the court before I
pronounce sentence,” and one that asked if there is “anything [you’d] like to
tell the Court?” both substantially complied with the rule. Id. So too here.

III. Compliance with Iowa Code Section 901.5(7).

Finally, Lorenzo Pena contends that the district court violated Iowa
Code section 901.5(7) because it failed to inform him that his mandatory
minimum sentence—which he had already served and was given credit for—
was seven days of imprisonment. 1 See Iowa Code § 321J.2(4)(a).

1
The State argues that Lorenzo Pena failed to preserve error by moving for arrest
of judgment. But as this is a procedural-defect sentencing challenge, we disagree. See State
v. Chawech, 15 N.W.3d 78, 84–85 (Iowa 2024). The State’s reliance on State v. Ross is
unavailing because there the court required error preservation on a claim that “the district
court failed to inform [the defendant] at the time of his guilty plea that a mandatory
minimum sentence would be applied.” 729 N.W.2d 806, 808 n. 1 (Iowa 2007) (emphasis
added). True, the court noted that the defendant framed his guilty-plea challenge as a
violation of section 901.5(7) in his pro se brief. But that stray mention of a self-represented

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Section 901.5(7) provides that “[a]t the time fixed by the court for
pronouncement of judgment and sentence . . . [t]he court shall inform the
defendant of the mandatory minimum sentence, if one is applicable.” Id.
§ 901.5(7). And Lorenzo Pena is correct that the court never mentioned the
seven-day mandatory minimum.

Assuming that a mandatory minimum is still “applicable” under the
statute even when the minimum has already been satisfied by time served at
the time of sentencing, the court’s failure to comply with that duty here does
not invalidate his sentencing. Lorenzo Pena points us to no case vacating a
sentence for a violation of section 901.5(7). Indeed, neither we nor the parties
have identified a case even considering the merits of a sentencing challenge
under that subsection of the statute.

But the supreme court rejected a similar challenge based on another
subsection of the same statute requiring the court to “publicly announce . . .
[t]hat the defendant may be eligible for parole before the sentence is
discharged.” Id. § 901.5(10)(b); see State v. Johnson, 513 N.W.2d 717, 720
(Iowa 1994). The court explained that “to invalidate proceedings taken in
disregard of stated procedural requirements, it must be determined that the
omitted duty is essential to accomplishing the purpose of the statute as
applied to the party seeking to take advantage of the omission.” Id. And it
reasoned that the statute’s duty there, while essential to the goal of
“inform[ing] the public of the true dimension of the sentence imposed,” had
“no function in imparting information to the defendant that is necessary for
a valid plea and sentencing” because now-rule 2.8(2)(b)(2) “which operates
at the time of the plea” governs “imparting that information” to the

litigant’s framing of an unpreserved claim does not trump the court’s more recent
guidance on the error-preservation rules at sentencing. See Chawech, 15 N.W.3d at 84–85.

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defendant. Id.; see also Iowa R. Crim. P. 2.8(2)(b)(2) (requiring the court,
before accepting a guilty plea, to “inform[] the defendant of, and establish[]
that the defendant understands, . . . [t]he statutory maximum and minimum
penalties for the offense to which the plea is offered”).

The same logic applies here. Although subsection 7 speaks of
informing the defendant rather than publicly announcing, it is still the guilty-
plea procedures rather than the sentencing procedures that are focused on
ensuring the defendant is aware of the mandatory parameters of the sentence.
See Johnson, 513 N.W.2d at 720. And where, as here, no additional mandatory
minimum prison sentence applies beyond the time that the defendant has
already served and been credited, informing the defendant of that fact serves
no function that is so essential that the sentencing proceeding should be
invalidated. Cf. id. We thus reject Lorenzo Pena’s section 901.5(7) challenge.

Because none of Lorenzo Pena’s challenges to the district court’s
sentencing discretion prevail, we affirm his sentence.

AFFIRMED.

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