IN THE COURT OF APPEALS OF IOWA

No. 22-1817

Filed August 30, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

GARETT ANDREW McMILLAN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Michael J. 

Schilling, Judge.

A defendant challenges imposing judgment and sentence. REVERSED 

AND REMANDED FOR RESENTENCING.

Karmen R. Anderson of Anderson & Taylor, PLLC, Des Moines, for 

appellant.

Brenna Bird, Attorney General, and Israel Kodiaga, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and Tabor and Greer, JJ.
2

TABOR, Judge.

Garett McMillan pleaded guilty to four counts of fraudulent practice for 

tampering with the odometers of cars he sold online. In exchange for his pleas,

the State agreed to remain silent on his request for a deferred judgment. While 

the State lived up to its bargain, McMillan now contends the sentencing court 

misinterpreted the State’s recommendation.1

Because the district court relied on an improper sentencing factor in 

considering whether to grant McMillan a deferred judgment, we reverse and 

remand for resentencing before a different judge.

I. Facts and Prior Proceedings

McMillan sold several used cars on Facebook Marketplace at inflated 

prices, misrepresenting their mileage and subsequent value to consumers. He

reduced the readings on the odometers between 68,000 and 247,000 miles and 

charged consumers what would have been the resale value with the false mileage. 

The buyers were unaware of the hoax at the time of sale but later found out and 

alerted the authorities. 

After investigating those consumer complaints, the State charged McMillan 

with six counts of fraudulent practice in the second degree, class “D” felonies,

under Iowa Code section 714.10(1)(a) (2019). In exchange for McMillan’s guilty 

pleas to four counts of fraudulent practice in the third degree, aggravated 

1 Despite McMillan entering guilty pleas, he has “good cause” under Iowa Code 

section 814.6 (2022) to appeal from alleged sentencing error. See State v. 

Damme, 944 N.W.2d 98, 104–05 (Iowa 2020). 
3

misdemeanors, in violation of section 714.11, the State dismissed the remaining 

counts and agreed to “stand silent” if he asked for a deferred judgment. 

At the sentencing hearing, the prosecutor described the ramifications of the

plea agreement should the court deny McMillan’s request to defer judgment:

[T]he State, as part of the plea agreement, agreed to Counts I 

through II—agreed to amend it to Fraudulent Practice in the Third 

Degree, which is an aggravated misdemeanor. On those three 

counts, Mr. McMillan would serve 364 days on each count. They 

would be served consecutively and suspended in their entirety. 

Count IV would also be amended to Fraudulent Practice in the Third 

Degree but total suspension—364 days, all suspended, except for 

four days, which can be served on weekends, and consecutive to 

Counts I through III. He would do two years of formal probation as 

part of this plea. He would get minimum fines. Fines would be 

suspended for two of the four counts and the State—the State would 

stand silent on the Defendant’s request for a deferred judgment, if 

requested.

Indeed, McMillan asked the court to defer judgment. He emphasized his 

lack of criminal history. McMillan also told the court that his financial instability,

coupled with the need to care for his family, drove him to the desperate decision 

to misrepresent the cars’ mileage on Marketplace. McMillan stressed that he was 

requesting a deferred judgment out of concern for his livelihood. McMillan, a 

hazardous material truck driver, was uncertain whether he could renew his 

“hazmat” clearance if he had convictions on his record.

In denying McMillan’s request for a deferred judgment, the district court 

cited two factors. One was the “recommendation by the State of Iowa” and the 

other was “the fact that [McMillan] engaged in a series of events over a course of 

time . . . committing multiple acts of fraudulent practice . . . each act [requiring] an 

independent intent to defraud.” 
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Later in the sentencing hearing, defense counsel reminded the court that 

the State did not oppose a deferred judgment, rather it “just agreed to stand silent 

at our request.” But the district court did not retract its reliance on the State’s 

“recommendation.” Rather, the court stuck by its decision to deny McMillan’s

request to defer judgment: “[T]he facts and circumstances are very aggravated in 

this case.” The court sentenced McMillan to two years in prison, suspended the 

sentence with probation on all except four days to be served consecutively on 

weekends, and ordered restitution for the victims.

McMillan now asks us to vacate the judgment and remand for resentencing.

II. Scope and Standard of Review

We review sentencing challenges for correction of legal error. State v. 

Formaro, 638 N.W.2d 720, 724 (Iowa 2002). McMillan must show “an abuse of 

trial court discretion or a defect in the sentencing procedure, such as trial court 

consideration of impermissible factors.” See State v. Grandberry, 619 N.W.2d 399, 

401 (Iowa 2000) (citation omitted). We find an abuse “when the sentencing court 

exercises its discretion on grounds or for reasons clearly untenable or to an extent 

clearly unreasonable.” State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999) (citation 

omitted). The court in exercising its discretion should weigh all pertinent matters, 

including the nature of the offense, the attending circumstances, defendant’s age, 

character, propensities, and chances of his reform. State v. August, 589 N.W.2d 

740, 744 (Iowa 1999). 

III. Analysis

McMillan contends that the district court considered an improper factor 

when refusing to defer judgment. That factor, he argues, was the court’s reliance 
5

on the State’s recommendation, when the State agreed to make no 

recommendation concerning his request for a deferred judgment.

The State counters that McMillan’s argument “mischaracterizes the record.” 

It insists that McMillan knew the prosecutor would also advocate for suspended 

sentences and four days in jail as detailed in the plea agreement. 

By our reading of the record, those contingencies recited by the prosecutor

came into play only if the court decided to impose judgment and sentence. To 

comply with the plea agreement, the State could not advocate for suspended 

sentences in place of a deferred judgment while simultaneously remaining silent 

on McMillan’s request to defer judgment. And McMillan does not contest the 

State’s compliance with the agreement.

Instead, McMillan focuses on the sentencing court’s exercise of discretion. 

The court cited the State’s “recommendation” as one of two reasons for denying 

McMillan’s request for the deferred judgment. When McMillan’s defense attorney 

reiterated that the State did not make a recommendation and agreed to remain 

neutral as to the deferred judgment, the court did not clarify its rationale.

We understand that district courts are afforded “a significant amount of 

latitude because of the discretionary nature of judging.” State v. Fetner, 959 

N.W.2d 129, 133 (Iowa 2021) (citation omitted). But courts must consider only the 

record evidence. Id. at 136 (finding sentencing court’s speculation about Fetner’s

conduct was improper based on information before it). Here, the court overlooked 

the State’s agreement to take no position on deferring judgment and mistakenly 

believed that the State was recommending suspended sentences under the plea 

agreement. Even when given the chance to acknowledge the State’s true position, 
6

the court did not clear up the confusion. Because the court did not recognize the 

State’s neutrality on deferring judgment, McMillan lost the full benefit of the plea 

bargain.

“[I]f a court in determining a sentence uses any improper consideration, 

resentencing of the defendant is required, even if it was merely a secondary 

consideration.” State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (citation omitted); 

see also State v. Conrad, No. 12–0670, 2013 WL 93013, at *1–2 (Iowa Ct. App. 

Jan. 9, 2013) (remanding for resentencing when improper factor “crept into the 

proceedings”) True, the court cited a number of proper factors, including the 

pattern of McMillan’s crimes. But “[t]he fact that the court also considered other, 

permissible factors in sentencing the defendant does not make the court’s reliance 

on this impermissible consideration of no consequence.” Laffey, 600 N.W.2d at 

62. Bottom line, we can’t guess how much weight the court gave one factor over 

another. See Lovell, 857 N.W.2d at 243. Thus, we reverse and remand this case

for resentencing before a different judge. 

REVERSED AND REMANDED FOR RESENTENCING.