STATE v. FOSTER, 01-0725 (Iowa App. 3-13-2002)

STATE OF IOWA, Plaintiff-Appellee, v. SCOTT GREGORY FOSTER, Defendant-Appellant.

No. 1-971 / 01-0725.Court of Appeals of Iowa.
Filed March 13, 2002.

Appeal from the Iowa District Court for Polk County, SCOTT ROSENBERG, Judge.

Scott G. Foster appeals the judgment and sentence entered following his plea of guilty to possession of methamphetamine with intent to deliver. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.

EISENHAUER, J.

Scott G. Foster appeals the judgment and sentence entered following his plea of guilty to possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6) (Supp. 1999). He contends the district court erred by considering unprosecuted charges when it denied his request for probation. We review the court’s sentencing decision for an abuse of discretion. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).

When a sentencing court relies on unprosecuted and otherwise unproven charge we must set aside the sentence and remand to the district court for resentencing. State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998). However, the defendant must make an affirmative showing the court actually relied on unprosecuted and unproven offenses. Id. We find he cannot. In giving its reasons for its sentence, the court made reference to “charges” on Foster’s record dating back to 1978. Foster contends this statement proves the court relied on unprosecuted charges in his criminal history. However, earlier in the hearing the court resolutely stated it would not consider unproven charges because to do so would be illegal. We find that in reviewing the record as a whole it is clear the sentencing court did not improperly consider unprosecuted and unproven charges in determining Foster’s sentence.

AFFIRMED.