State of Iowa v. Allen Burdette Russell

IN THE COURT OF APPEALS OF IOWA

No. 15-0685
Filed March 9, 2016

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ALLEN BURDETTE RUSSELL,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.

Allen Burdette Russell appeals the sentence imposed following his

conviction of two counts of third-degree theft. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller and Kevin Cmelik,

Assistant Attorneys General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

Allen Burdette Russell appeals the sentence imposed following his

conviction of two counts of third-degree theft, class “D” felonies, in violation of

Iowa Code sections 713.1 and .6A (2013). He contends the sentencing court

considered an impermissible factor in sentencing him to a term of no more than

five years in prison on each count, to run concurrently. Specifically, he

complains the court impermissibly considered two disciplinary reports he

received for fighting and destruction of property while in jail awaiting trial, which

he alleges constitute unproven charges he did not admit to committing.

The district court must consider what sentence will provide the defendant

with the maximum opportunity for rehabilitation while also protecting the

community from further offenses by the defendant and others. See State v.

Knight, 701 N.W.2d 83, 86 (Iowa 2005) (citing Iowa Code § 901.5). We will not

overturn a sentence imposed by the district court unless the sentencing court

abused its discretion or there was a defect in the sentencing procedure. See

State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998). Relying on an unprosecuted

offense that was not admitted by the defendant or otherwise proved is a defect in

the sentencing procedure that requires the sentence be set aside and the case

remanded to the district court for resentencing. Id.

The disciplinary reports considered by the district court were listed in the

presentence investigation (PSI) report. The purpose of a PSI report is “to provide

the court pertinent information for purposes of sentencing and to include

suggestions for correctional planning for use by correctional authorities

subsequent to sentencing.” Iowa Code § 901.2(4) (Supp. 2013). If the court
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orders a PSI, the investigator must inquire into the defendant’s criminal record

and social history, as well as the harm the defendant presents to the community.

Id. § 901.3(1)(b), (d). The court may consider any portion of the PSI report not

challenged by the defendant. State v. Grandberry, 619 N.W.2d 399, 402 (Iowa

2000). Because Russell did not object to the statement in the PSI report that he

had been disciplined for fighting and destruction of property while in jail, 1 the

court was permitted to rely on that information.

Because the court properly relied on information contained in the PSI

report that Russell did not object to, Russell has failed to show a defect in the

sentencing procedure that requires resentencing. Accordingly, we affirm.

AFFIRMED.

1
The only objection Russell made to the PSI report concerned a statement that he had
met certain people in bars. Russell alleged he “met them on the streets and not in a
bar.”