State of Iowa v. Louis Lee Cubbage, Jr.

IN THE COURT OF APPEALS OF IOWA

No. 23-1156
Filed May 8, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

LOUIS LEE CUBBAGE JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jackson County, Meghan Corbin,

Judge.

A defendant appeals his sentence for willful injury causing bodily injury.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

Stuart Hoover, East Dubuque, Illinois, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., and Badding and Buller, JJ.
2

BADDING, Judge.

Louis Cubbage appeals the prison sentence imposed following his written

guilty plea to a reduced charge of willful injury causing bodily injury. He claims the

district court relied on an improper sentencing factor when it stated the reason for

the sentence was that he “almost killed” the victim. We agree and remand for

resentencing.

I. Background Facts and Proceedings

Cubbage was charged with willful injury causing serious injury, a class “C”

felony in violation of Iowa Code section 708.4(1) (2022), after he hit Sean Haylock

in the head with a metal pipe, using what witnesses in the minutes of testimony

described as a “full force ‘baseball swing.’” The minutes of testimony stated that

Haylock was taken to a nearby hospital, where he was placed in the intensive care

unit and treated for a “laceration and swelling to his temple, numerous fractures on

his skull around the left orbital eye socket and bleeding on the brain.”1 In a victim

impact statement written a few months after the incident, Haylock stated that he

was still suffering from headaches, having trouble seeing, and unable to work.

Pursuant to a plea agreement with the State,2 Cubbage entered a written

guilty plea to the lesser offense of willful injury causing bodily injury, a class “D”

felony in violation of Iowa Code section 708.4(2). In his plea, Cubbage admitted:

1 There were no medical records attached to the minutes but instead summaries

of the treating physicians’ expected testimony.
2 The plea agreement included an unrelated charge for driving while barred that

Cubbage picked up after the willful-injury charge. Cubbage was sentenced on
both charges at the same hearing. He separately appealed his sentence for driving
while barred, which we address in a companion case also decided today. See
State v. Cubbage, No. 23-1181, 2024 WL _____ (Iowa Ct. App. May 8, 2024).
3

“On July 19, 2022 in Jackson County, Iowa, I hit another individual with a pipe with

the inten[t] to cause serious injury.” He also “accept[ed] the minutes of testimony

as substantially true as to the elements” of that charge. The district court accepted

his plea, ordered a presentence investigation report, and set a sentencing hearing.

At the hearing, the court opened the record by noting the “defendant pled

guilty to Willful Injury with Serious Injury, which is a class D Felony.” When asked

for its recommendation, the State pushed for prison, noting:

Although Mr. Cubbage’s criminal history is relatively light, the nature
of this case was quite serious. The victim in this case, Mr. Haylock,
suffered significant serious injury requiring an airlift down to Iowa City
and required a long period of treatment and recovery. He will never
be the same as stated in his Victim Impact Statement and all for very,
very little provocation.

Defense counsel acknowledged “the allegations here are extremely serious,” but

highlighted several mitigating factors to support a request for probation, including

Cubbage’s poor health and substance-use issues.3 Cubbage then addressed the

court, admitting: “On July 19th, 2022, I hit Mr. Haylock with a pipe. I was under the

influence and was not thinking straight. I realize I should have handled it a lot

better in a different way. I apologize for his injuries.”

After hearing from Cubbage, the court pronounced its sentence:

Pursuant to your plea of guilty to Willful Injury Causing Serious
Injury, in violation of Iowa Code Section 708.4(2) . . . it is the
judgment and sentence of this Court that you shall be committed to
the custody of the Iowa Department of Corrections for a period not
to exceed five years and shall pay a fine of $1,025.

The court continued:

3 In the presentence investigation report, Cubbage admitted using marijuana and

methamphetamine for the past three years.
4

The reasons for this sentence, Mr. Cubbage, is that you almost killed
him. I get that this was a situation that was obviously volatile on both
sides, but you have now altered this man and his family’s life forever,
and the fact that you would have a lapse in judgment like that based
on substance abuse leads me to believe that there needs to be an
aggressive approach to your substance abuse problems, and I’m
hoping that you can get the help that you need within the prison
system.

In its written judgment entry, the court stated that Cubbage had appeared for

sentencing on his “plea of guilty to Willful Injury Causing Serious Injury, Class D

Felony, in violation of Iowa Code Section 708.4(1)” and imposed the sentence

pronounced at the hearing.

On appeal,4 Cubbage claims that the district court abused its discretion by

relying on an improper sentencing factor. He argues the “court was presented with

an insufficiency of evidence in order to draw the conclusion that the victim (Mr.

Haylock) was nearly killed as a result of the single strike upon the victim.” Cubbage

contends the court’s “reliance upon unproven medical conclusions suggests a

reliance upon ‘higher charges in imposing sentence.’” (Citation omitted.)

II. Standard of Review

Our review of a sentence imposed in a criminal case is for correction of

errors at law. Damme, 944 N.W.2d at 103. Sentencing decisions that fall within

the statutory limits are cloaked with a strong presumption in their favor. State v.

McCalley, 972 N.W.2d 672, 676 (Iowa 2022). “Absent ‘an abuse of discretion or

some defect in the sentencing procedure,’ we will not reverse a sentence.” Id.

(citations omitted). The use of an improper sentencing factor, even if it was a

4 Though Cubbage did not address the issue in his appellate brief, the State
concedes that he has good cause to appeal this non-mandatory, contested
sentence. See State v. Damme, 944 N.W.2d 98, 104 (Iowa 2020).
5

secondary consideration, is an abuse of discretion that requires resentencing.

State v. Fetner, 959 N.W.2d 129, 134 (Iowa 2021).

III. Analysis

Sentencing judges are afforded “a significant amount of latitude because of

the ‘discretionary nature of judging and the source of the respect afforded by the

appellate process.’” Id. (citation omitted). In exercising this discretion, relevant

factors include, among other things, the nature of the offense and its attending

circumstances. See State v. Hopkins, 860 N.W.2d 550, 554–55 (Iowa 2015); see

also Iowa Code § 907.5(1); State v. Begle, No. 19-1119, 2020 WL 2986130, at *3

(Iowa Ct. App. June 3, 2020) (“Considering the nature of the offense, including the

harm the defendant causes to the victim, is pertinent information at sentencing.”).

But the 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.” Fetner, 959 N.W.2d at 135. “[W]hen 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.” State v. Longo, 608 N.W.2d 471, 474

(Iowa 2000). Here, that issue is complicated by the court’s citations to the wrong

crime.

As discussed above, Cubbage was originally charged with willful injury

causing serious injury,5 a class “C” felony in violation of Iowa Code

5 “‘Serious injury’ is a term of art in Iowa criminal law.” State v. Carter, No. 13-0484,

2014 WL 69755, at *2 (Iowa Ct. App. Jan. 9, 2014). Iowa Code section 702.18
defines it as either a “disabling mental illness” or “bodily injury which does any of
the following: (1) Creates a substantial risk of death[;] (2) Causes serious
6

section 708.4(1). But he pled guilty to willful injury causing bodily injury, a class

“D” felony in violation of section 708.4(2). Although the district court applied the

punishment set out in our criminal code for a class “D” felony, it stated at the

sentencing hearing and in its written judgment entry that Cubbage was being

sentenced for willful injury causing serious injury. The court’s repeated references

to willful injury causing serious injury, coupled with its statement that Cubbage

“almost killed” Haylock, suggests that, in sentencing Cubbage to prison, the court

may have considered that he had originally been charged with the higher-level

crime. That is impermissible under State v. Thompson, 275 N.W.2d 370, 372

(Iowa 1979), which held that a

sentencing court may not . . . impose a severe sentence for a lower
crime on the ground that the accused actually committed a higher
crime unless the facts before the court show the accused committed
the higher crime or the defendant admits it even if the prosecutor
originally charged the higher crime and reduced the charge.

We considered a similar sentencing issue in Carter, where the defendant

was also originally charged with willful injury causing serious injury but pled guilty

to willful injury causing bodily injury. 2014 WL 69755, at *2. In that case, the

district court “stated three times that Carter ‘seriously injured’ the victim” when

sentencing him for willful injury causing bodily injury. Id. Even though the minutes

of testimony in that case noted the victim “was left with a scar on his lip,” we did

not infer that the scar amounted to serious permanent disfigurement under the

definition of a serious injury. Id. at *3. Instead, we found the court impermissibly

permanent disfigurement[; or] (3) Causes protracted loss or impairment of the
function of any bodily member or organ.”
7

considered the unproven offense of willful injury causing serious injury in

sentencing the defendant. Id. We reach the same conclusion here.

In doing so, we recognize, as we did in Carter, 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.” See Longo, 608 N.W.2d at 474 (allowing

judge to consider defendant’s criminal activity presented to him in sworn testimony

at sentencing hearing). But Cubbage did not admit to causing Haylock serious

injury, and the district court “did not make any finding that facts existed to

substantiate the higher charge” it stated that Cubbage was being sentenced for.

Carter, 2014 WL 69755, at *3; accord State v. Messer, 306 N.W.2d 731, 733

(Iowa 1981).

For these reasons, we vacate the sentence imposed and remand to the

district court for resentencing in front of a different judge on willful injury causing

bodily injury, in violation of Iowa Code section 708.4(2).

SENTENCE VACATED AND REMANDED FOR RESENTENCING.