IN THE COURT OF APPEALS OF IOWA

No. 16-1181

Filed January 11, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

VICTOR WAYNE JAMISON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, 

District Associate Judge.

Defendant appeals his conviction and sentence for operating while 

intoxicated. AFFIRMED.

Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant.

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

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

Victor Jamison appeals his conviction and sentence for operating while 

intoxicated. We find the district court did not abuse its discretion in sentencing 

Jamison to ninety days in jail. We affirm.

I. Background Facts & Proceedings

Jamison was charged with operating while intoxicated, in violation of Iowa 

Code section 321J.2 (2015), a serious misdemeanor. He entered into a plea 

agreement in which he agreed to plead guilty to the charge and the State agreed 

to recommend he receive a sentence of four days in jail.1 The State also agreed 

to dismiss a speeding ticket. Jamison signed a written guilty plea, which was 

accepted by the court.

At the July 13, 2016 sentencing hearing, the State recommended Jamison 

be sentenced to four days in jail. The court asked what prompted Jamison’s 

contact with law enforcement, and the prosecutor stated Jamison had been 

driving 138 miles per hour in a sixty-five mile per hour zone. The court then 

asked about Jamison’s blood alcohol level and was informed it was .225. 

Defense counsel also requested Jamison be sentenced to four days in jail, 

pointing out Jamison was employed, had undergone a substance abuse 

evaluation, had begun treatment, and had some medical problems. Jamison had 

two previous convictions for driving while intoxicated in Virginia.

The court sentenced Jamison to ninety days in jail, with credit for time 

served. The court determined Jamison could leave jail to accommodate his work 

 

1The plea agreement also encompassed all other mandatory minimum sentences.
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schedule, pursuant to section 356.26, subject to the conditions he exhibit good 

behavior and avoid alcohol and drugs. Jamison now appeals.

II. Standard of Review

If a sentence is within the statutory limits, we review a district court’s 

sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545, 

552 (Iowa 2015). “Thus, our task on appeal is not to second-guess the decision 

made by the district court, but to determine if it was unreasonable or based on 

untenable grounds.” Id. at 553. “In other words, the district court did not abuse 

its discretion if the evidence supports the sentence.” Id.

III. Discussion

Jamison claims the district court abused its discretion by sentencing him 

to ninety days in jail. He states the court improperly considered the charge of 

speeding, which was dismissed. He claims the court’s inquiry into the 

circumstances of his arrest turned the court into an advocate for the State.

During sentencing, a 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. 

Washington, 832 N.W.2d 650, 659 (Iowa 2013). There must be an affirmative 

showing the court relied upon improper evidence. State v. Sailer, 587 N.W.2d 

756, 762 (Iowa 1998).

On the other hand, in applying its discretion in sentencing,

The trial court and we on review should weigh and consider 

all pertinent matters in determining proper sentence, including the 

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

age, character and propensities and chances of his reform. The 

courts owe a duty to the public as much as to defendant in 
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determining a proper sentence. The punishment should fit both the 

crime and the individual.

State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979); see also State v. 

Thacker, 862 N.W.2d 402, 405 (Iowa 2015). Thus, the court should consider the 

nature of the offense and the attending circumstances. State v. Millsap, 704 

N.W.2d 426, 435 (Iowa 2005). 

Under the unique circumstances of this case, we determine the district 

court could consider the fact Jamison was stopped for speeding and his blood 

alcohol level at the time of the stop, as these relate to the nature of the offense 

and the attending circumstances. Jamison’s claims would improperly prohibit the 

court from considering all of the applicable factors the court should review before 

imposing the sentence. See State v. Schlachter, 884 N.W.2d 782, 786 (Iowa Ct. 

App. 2016) (noting the parties’ plea agreement could not prohibit the court from 

considering a defendant’s criminal history at the time of sentencing). 

Additionally, the scope of inquiry in a sentencing proceeding is in the hands of 

the court. State v. Cole, 168 N.W.2d 37, 41 (Iowa 1969). Here, where the court 

felt more information was necessary in order to fulfill its duty to sentence the 

defendant, the court could reasonably make inquiries. See Washington, 832 

N.W.2d at 661 (noting it was “nothing out of the ordinary” for the sentencing court 

to ask the defendant about employment and the ability to pay a civil penalty).

Finally, Jamison claims the court did not look at him individually but 

focused solely on the nature of the offense. “The nature of the offense alone 

cannot be determinative of a discretionary sentence.” State v. Dvorsky, 322 

N.W.2d 62, 67 (Iowa 1982).
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At the sentencing hearing, the court stated:

Mr. Jamison, my goals with respect to sentencing are to 

provide for your rehabilitation and protection of the community. In 

trying to achieve these goals, to the extent these details have been 

made known to me, I have taken into account the 

recommendations of the parties; your age; your employment history 

and circumstances; your educational background; your family 

background and circumstances; your criminal history, including the 

fact that this is your third drunk driving offense since 2013. I have 

also taken into account your appearance and demeanor here in the 

courtroom; your substance abuse issues and needs as addressed 

in the Substance Abuse Evaluation Report on file, as well as 

discussions regarding that issue here today; your mental-health 

issues and needs, as addressed here; the nature of the offense and 

facts and circumstances surrounding it, including the fact that your 

blood-alcohol level was nearly 300 percent of the legal limit; and 

the dangerous driving that was being conducted based on your 

speed. With an excessive blood-alcohol level, as well as the—

considering the other information contained in the Presentence 

Investigation Report, . . . I have considered all those factors, 

Mr. Jamison, whether I go into detail about them or not.

We conclude the record shows the court considered several factors, 

including the nature of the offense and the attending circumstances, but did not 

rely on these two factors alone. The court’s statement during the sentencing 

hearing shows the court also considered Jamison’s age, employment history, 

educational background, family background, criminal history, substance abuse 

issues, and mental health issues. We find Jamison has not shown the district 

court abused its discretion by relying solely on the nature of the offense in 

determining Jamison’s sentence.

We affirm Jamison’s conviction and sentence.

AFFIRMED.

Potterfield, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, Presiding Judge (dissenting).

I respectfully dissent. I would conclude the district court improperly 

considered Jamison’s speed. See State v. Gonzalez, 582 N.W.2d 515, 517 

(Iowa 1998). Accordingly, I would vacate the sentence and remand for 

resentencing.