IN THE COURT OF APPEALS OF IOWA

No. 15-0936

Filed April 27, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TIMOTHY MICHAEL SHANAHAN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Appanoose County, Rose Anne 

Mefford, District Associate Judge.

Timothy Michael Shanahan appeals his conviction for fraudulent practice. 

SENTENCE VACATED AND REMANDED FOR RESENTENCING. 

Steven E. Goodlow, Albia, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant 

Attorney General, for appellee.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

Timothy Michael Shanahan appeals his conviction for fraudulent practice 

in the second degree, claiming the district court considered impermissible factors 

in sentencing him to prison and his trial attorney was ineffective for failing to 

adequately prepare him for the sentencing hearing. We find the district court 

impermissibly considered Shanahan’s dismissed charges and remand for 

resentencing. We decline to address Shanahan’s ineffective assistance of 

counsel claim on direct appeal. 

On June 23, 2014, Shanahan was charged with fraudulent practice in the 

second degree, in violation of Iowa Code sections 714.8(1) and 714.10 (2013). 

Shanahan entered into a plea agreement with the State, in which he agreed to 

pay restitution in five other pending cases (involving charges of fraudulent 

practice and theft) in exchange for the dismissal of those charges. Shanahan 

pled guilty to one count of fraudulent practice in the second degree on 

February 18, 2015. 

Sentencing was originally set for April 29, but the parties agreed to 

reschedule sentencing for June 24 to give Shanahan an opportunity to work with 

the “drug task force.” However, Shanahan failed to make contact with the task 

force and the State filed a motion to reset the hearing for May 27; the court 

granted the motion. 

On May 27, the court sentenced Shanahan to a term of incarceration not 

to exceed five years pursuant to the plea agreement. The court also ordered 

Shanahan to make restitution for his conviction and the dismissed charges. 

Shanahan appeals from this sentence. 
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Shanahan claims the district court erred by considering impermissible 

factors (his dismissed charges) when it determined his sentence. “We review 

sentencing decisions for abuse of discretion or defect in the sentencing 

procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). A district court 

may not consider an unproven or unprosecuted offense in sentencing a 

defendant unless (1) the facts before the court reveal that the defendant 

committed the offense, or (2) the defendant admits it. State v. Jose, 636 N.W.2d 

38, 41 (Iowa 2001); see also, e.g., State v. Pankey, No. 02-0918, 2003 WL 

558500, at *1 (Iowa Ct. App. Feb. 28, 2003). If a court uses any improper 

consideration in sentencing a defendant, resentencing is required. State v. 

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

We agree with Shanahan the court impermissibly considered his 

dismissed charges. The court stated: “Mr. Shanahan, I’ve selected this particular

sentence for you after considering a number of factors. . . . I considered . . . your 

prior criminal record, which is lengthy for similar types of offenses.” (Emphasis 

added.) Other than juvenile court adjudications for theft and burglary (which 

occurred over twenty-five years ago), Shanahan’s criminal record did not contain 

any convictions for offenses similar to fraudulent practice. Cf. Jose, 636 N.W.2d 

at 41–43 (holding reference to “additional crimes” did not establish court 

considered unproven charges, given defendant’s prior criminal history). The 

facts before the court did not reveal Shanahan committed the dismissed offenses

and Shanahan’s agreement to pay restitution for the dismissed charges is 

insufficient to demonstrate an admission of guilt. Therefore we find the district 
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court impermissibly considered Shanahan’s dismissed charges in its sentencing 

and we remand for resentencing. 

Shanahan also claims his trial counsel was ineffective for failing to 

adequately prepare him for the sentencing hearing. We review claims of 

ineffective assistance of counsel de novo. See State v. Finney, 834 N.W.2d 46, 

49 (Iowa 2013). To prevail, Shanahan must show (1) counsel breached an 

essential duty and (2) prejudice resulted. See Strickland v. Washington, 466 

U.S. 668, 687 (1984). The claim fails if either element is lacking. Anfinson v. 

State, 758 N.W.2d 496, 499 (Iowa 2008). Generally, we do not resolve claims of 

ineffective assistance of counsel on direct appeal and preserve such claims for 

postconviction relief proceedings. State v. Clay, 824 N.W.2d 488, 494 (Iowa 

2012). However, we will address such claims on direct appeal when the record 

is sufficient to permit a ruling. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). 

We find the record insufficient to address Shanahan’s ineffective assistance of 

counsel claim and preserve the claim for a possible postconviction relief 

proceeding. 

SENTENCE VACATED AND REMANDED FOR RESENTENCING. 

Tabor, J., concurs; McDonald, J., dissents.
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MCDONALD, Judge. (dissenting)

“[T]he decision of the district court to impose a particular sentence within 

the statutory limits is cloaked with a strong presumption in its favor and will only 

be overturned for an abuse of discretion or the consideration of inappropriate 

matters.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “In order to 

overcome the presumption the district court properly exercised its discretion, 

there must be an affirmative showing the court relied on the improper evidence.” 

State v. Dake, 545 N.W.2d 895, 897 (Iowa Ct. App.1996). One inappropriate 

matter the district court should not consider at sentencing is unproved criminal 

conduct, including unprosecuted charges, unproved charges, and dismissed 

charges. See State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998) (stating it is 

improper for the sentencing court to consider criminal conduct not “otherwise 

proved”). 

The defendant has not made an affirmative showing the district court 

relied on the dismissed charges in making its sentencing determination. The 

defendant assumes the district court’s reference to “similar types of offenses” 

refers to the dismissed charges. As noted by the majority, however, the 

defendant does have a history of committing property crimes, which are “similar 

types of offenses” to the crime at issue in this case. We should not infer the 

district court considered an improper factor if it is not apparent from the record. 

See Formaro, 638 N.W.2d at 725. Our goal is not to second guess the 

sentencing decision but to determine if the decision rests on an untenable or 

improper ground. See State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015). 
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Even if the district court had considered the dismissed charges in making 

its sentencing decision, such consideration would not have been inappropriate in 

this case. When a defendant challenges a sentence on the ground the district 

court considered unproved criminal conduct, “the issue presented is simply one 

of the sufficiency of the record to establish the matters relied on.” State v. 

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). The sentencing court can 

consider those facts that are admitted or that otherwise are established as true. 

See id. 

The record in this case is sufficient to establish the matters relied on. 

First, during the sentencing hearing, the defendant admitted to the offense 

conduct relating to the dismissed charges. He explained he did “every one of 

them,” referring to his practice of accepting payment without providing services, 

“in a very short time frame.” He explained to the sentencing court that he did not 

mean to “hurt anyone in the community by collecting money and not finishing a 

job” but he was in financial trouble. Second, a sentencing court is permitted to 

consider the contents of a presentence investigation (PSI) in making its 

sentencing decision where the defendant does not object to the portion of the 

PSI being considered. See State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). 

Here, the defendant did not object to the district court relying on the PSI in 

making its sentencing determination. The PSI contained pecuniary damage 

statements from the victims of the dismissed charges. Shanahan agreed to pay 

restitution to these victims. Inclusion of the pecuniary damage statements in the 

PSI is sufficient record to establish the offense conduct underlying the dismissed 

charges for the purposes of sentencing. See State v. Kurka, No. 14-0776, 2015 
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WL 1332018, at *5-6 (Iowa Ct. App. Mar. 25, 2015) (holding the district court did 

not consider unproved conduct where “[a]ttached to the PSI were a number of 

exhibits including an investigative report describing the various forms of theft 

Kurka committed . . . and a statement of pecuniary damages”); State v. Womack,

No. 08-1865, 2009 WL 1677061, at *3 (Iowa Ct. App. June 17, 2009) (holding the 

district court did not improperly consider offense conduct for six dismissed counts 

of forgery where the defendant accepted responsibility for offense conduct by 

agreeing to pay restitution related to dismissed charges and the restitution 

information was contained in presentence investigation). 

Finally, even if the defendant had not explicitly admitted to the offense 

conduct underlying the dismissed charges, and even if the offense conduct was 

not of record in the PSI, consideration of the dismissed charges would not have 

been inappropriate in this case. “There should be a limit as to how far a court 

must go in not accepting as true that which all others know to be true.” State v. 

Gonzalez, 582 N:W.2d 515, 517 (Iowa 1998) (Carter, J., dissenting). Requiring 

the district court to order restitution to victims while at the same time requiring the 

district court to pretend the defendant did not engage in criminal conduct with 

respect to those victims is beyond the limit. The district court is without authority 

to order restitution unless authorized by statute. See State v. Watson, 795 

N.W.2d 94, 95 (Iowa Ct. App. 2011) (“Criminal restitution is a creature of 

statute.”). Restitution “means payment of pecuniary damages to a victim . . .” 

Iowa Code § 910.1(4). A “victim” is “a person who has suffered pecuniary 

damages as a result of the offender’s criminal activities.” Iowa Code § 910.1(5). 

The code defines “criminal activities” to mean “any crime for which there is a plea 
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of guilty, verdict of guilty, or special verdict upon which judgment of conviction is 

rendered and any other crime . . . which is admitted or not contested by the 

offender, whether or not prosecuted.” Iowa Code § 910.1(1). When a criminal 

defendant agrees to pay “restitution” to the “victim” of a dismissed charge as part 

of a plea agreement, the defendant is admitting or not contesting the defendant 

engaged in “criminal activities” giving rise to “pecuniary damages” to a “victim.” 

By ordering restitution pursuant to such a plea agreement, the district court, 

implicitly or explicitly, must find there was a “victim” of the defendant’s “criminal 

activities.” In the absence of such a finding, the district court is without statutory 

authority to order restitution for a dismissed charge. See State v. Knudsen, 746 

N.W.2d 608, 609 (Iowa Ct. App. 2008) (“To determine if restitution is required in 

any given case, the district court must first identify the victim(s) of the defendant's 

criminal conduct.”). Therefore, the defendant’s agreement to pay restitution for a 

dismissed charge is sufficient proof, as a matter of law, of the criminal conduct 

underlying the dismissed charge to be considered for the purposes of 

sentencing. See Grandberry, 619 N.W.2d at 401 (“The standard of proof during 

the sentencing stage is lower than the standard used during trial.”).

For these reasons, I respectfully dissent. I would affirm the defendant’s 

sentence.