IN THE COURT OF APPEALS OF IOWA

No. 17-1376

Filed July 18, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

WYATT K. SLINKER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Kim M. Riley, 

District Associate Judge.

Wyatt Slinker appeals his sentence following his guilty plea to involuntary 

manslaughter. SENTENCE AFFIRMED IN PART AND VACATED IN PART AND 

REMANDED.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

A man claimed Wyatt Slinker owed him money. Slinker told the man to get 

out of his face, swung at him, and hit him. The man fell to the ground and 

eventually died. 

The State charged Slinker with involuntary manslaughter and assault 

causing serious injury. See Iowa Code §§ 707.5(1)(a), 708.2(4) (2017). Slinker 

pled guilty to involuntary manslaughter, and the State dismissed the assault 

charge. The district court adjudged Slinker guilty and sentenced him to prison for 

a term not exceeding five years. The court taxed costs to Slinker.

On appeal, Slinker contends (1) the district court considered improper 

sentencing factors, (2) his attorney was ineffective in failing to object to victim 

impact statements from the victim’s uncles, and (3) the district court improperly 

assessed costs against him on the dismissed charge. 

I. “It is a well-established rule that a sentencing court may not rely upon 

additional, unproven, and unprosecuted charges unless the defendant admits to 

the charges or there are facts presented to show the defendant committed the 

offenses.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). The sentencing 

decision “enjoys a strong presumption in its favor.” State v. Jose, 636 N.W.2d 38, 

41 (Iowa 2001). “To overcome the presumption, a defendant must affirmatively 

show that the district court relied on improper evidence such as unproven 

offenses.” Id.

Slinker argues the district court considered several unproven charges: 

(a) “multiple Disorderly Conduct convictions, when in reality the PSI established 

multiple Disorderly Conduct arrests but only one Disorderly Conduct conviction,”
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(b) “a 2016 sentencing for two ‘assaults’ against ‘two separate individuals,’ when 

in reality the PSI revealed a 2016 arrest for two assaults against two separate 

individuals but listed only one of those assault arrests as resulting in a conviction,”

and (c) his placement “on probation . . . a ‘third time’ prior to the commission of the 

instant offense when, in reality, the PSI established that [he] had been placed on 

probation only two times prior to the instant offense.”

 The PSI report contained two listings for disorderly conduct: (1) “2/7/2012, 

PD, Marshalltown, IA Disorderly Conduct—Abusive Epithets/Threat Gesture, 

SMCRO79915 3/13/2012, fine” and (2) “1/17/2015, SO, Tama County, IA

Disorderly Conduct—Loud or Raucous Noise, SMSM011774.” The district court 

referred to “a couple of disorderly conduct convictions,” notwithstanding the 

absence of a disposition line next to the second listing. However, at the sentencing 

hearing, the prosecutor stated Slinker had “a disorderly conduct conviction in 2012 

and in 2015.” Slinker failed to object to or correct this assertion. Under these 

circumstances, the court could have reasonably relied on the prosecutor’s 

representation. 

Context was also key. The court referred to the disorderly conduct 

convictions during a general discussion of Slinker’s lengthy criminal history. The 

reference was analogous to the court’s mention of “additional crimes” in Jose. See 

id. at 43 (“When considered in context with the remainder of the court’s explanation 

for imposing sentence, the reference to ‘additional crimes’ is not an ‘affirmative 

showing’ that the court considered unproven charges.”). We conclude Slinker

failed to make “an affirmative showing that the sentencing court relied on unproven 

charges in sentencing” him. See id. at 41; see also State v. Johnson, No. 15-1853,
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2016 WL 4803967, at *2 (Iowa Ct. App. Sept. 14, 2016) (noting PSI listed 

seventeen arrests and only twelve convictions but court “did not indicate any 

reliance on the seventeen arrests”); State v. Hildebrandt, No. 01-1581, 2003 WL 

118251, at *2 (Iowa Ct. App. Jan. 15, 2003) (court relied on defendant’s “extensive 

criminal history” and defendant “simply has not affirmatively shown that the 

sentencing court relied upon unprosecuted or unproven offenses in imposing 

sentence, whether based on criminal history data showing charges with no 

disposition after eighteen months or other unproven offenses”); State v. Wilson, 

No. 00-0609, 2001 WL 427404, at *2 (Iowa Ct. App. Apr. 27, 2001) (rejecting 

assertion that “the court’s consideration of the plea agreement necessarily denotes 

consideration of charges for which no conviction resulted”).

The same holds true for the assault convictions and probation sentences. 

The record establishes Slinker was convicted of two separate assault counts 

stemming from a single arrest, and he was sentenced to three prior periods of 

probation. The court did not rely on unproven offenses in sentencing Slinker.

II. Iowa Code section 915.21 allows crime victims to present victim 

impact statements at or before sentencing. The term “victim” includes “the 

immediate family members of a victim who died or was rendered incompetent as 

a result of the offense.” Iowa Code § 915.10(3). Immediate family members are 

spouses, parents, children, grandparents, grandchildren, sisters, and brothers; 

they are not uncles, aunts, nephews, nieces, and great-grandparents. State v. 

Sumpter, 438 N.W.2d 6, 8 (Iowa 1989).

Slinker contends his attorney was ineffective in failing to object to the victim 

impact statements presented by two of the victim’s uncles. See Strickland v. 
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Washington, 466 U.S. 668, 687 (1984) (requiring defendants claiming ineffective 

assistance to show (1) deficient performance and (2) prejudice). The State 

concedes, “[T]he victim’s uncles were not statutorily eligible to give victim impact 

statements” but argues Slinker has failed to show prejudice. See State v. Tesch, 

704 N.W.2d 440, 450 (Iowa 2005) (“An inability to prove ‘either the duty or 

prejudice prongs defeats the claim of ineffective assistance of counsel.’” (citation 

omitted)). To establish prejudice, Slinker must show “a reasonable probability” of 

a different outcome. See Strickland, 466 U.S. at 694. On our de novo review, we 

agree with the State that Slinker cannot satisfy this standard. 

One or more of the victim’s immediate family members stated (1) the fight 

was over a twenty-dollar bill, (2) Slinker showed no remorse, (3) the victim, like 

Slinker, had disabilities, (4) the victim’s father was killed by a drunk driver, (5) the 

victim’s father suffered some of the same injuries and died under similar 

circumstances as the victim, and (6) the victim’s mother lost her sole source of 

help. The uncles stated (1) the fight was over a twenty-dollar bill, (2) Slinker 

showed no remorse, (3) the victim had a learning disability, (4) the victim’s father 

was killed by a drunk driver, (5) the victim’s father suffered some of the same 

injuries and died under similar circumstances as the victim, and (6) the victim’s 

mother lost her helper. The uncles’ statements did not tell “the court anything that 

it did not already know.” See Tesch, 704 N.W.2d at 453; State v. Blythe, No. 08-

1466, 2009 WL 1219055, at *2 (Iowa Ct. App. May 6, 2009) (finding no prejudice 

where “the impact statements ‘told the judge little, if anything, that was not already 

apparent’” (citation omitted)). Because their statements were cumulative, we 

conclude Slinker’s attorney was not ineffective in failing to object. 
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III. “[O]nly such fees and costs attributable to the charge on which a 

criminal defendant is convicted should be recoverable under a restitution plan,”

unless the plea agreement provides otherwise. State v. Petrie, 478 N.W.2d 620, 

622 (Iowa 1991). “A defendant may be assessed costs clearly attributable to the 

charges on which the defendant is convicted but may not be assessed costs clearly 

attributable to dismissed charges.” State v. Johnson, 887 N.W.2d 178, 181 (Iowa 

Ct. App. 2016). “Fees and costs not clearly associated with any single charge 

should be assessed proportionally against the defendant.” Id. at 181-82 (quoting 

Petrie, 478 N.W.2d at 622). 

Slinker contends the district court improperly taxed him with costs on the 

dismissed assault charge. The State concedes, “[T]he district court’s written 

judgment purported to tax costs for the dismissed charge” but argues Slinker failed 

to establish he was over-assessed.

We agree Slinker was assessed costs on the dismissed charge. Our 

conclusion is bolstered by the court’s separate assessment of costs on the 

manslaughter charge. Although the State cogently argues the costs listed in the 

record are all attributable to the manslaughter charge, our precedent requires us 

to vacate that portion of the sentence and remand for a corrected sentencing order. 

See State v. Brown, 905 N.W.2d 846, 857 (Iowa 2018); Johnson, 887 N.W.2d at 

182-83. 

SENTENCE AFFIRMED IN PART AND VACATED IN PART AND 

REMANDED.