IN THE COURT OF APPEALS OF IOWA

No. 15-0685

Filed March 9, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ALLEN BURDETTE RUSSELL,

Defendant-Appellant.

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Appeal from the Iowa District Court for Scott County, Marlita A. Greve, 

Judge.

Allen Burdette Russell appeals the sentence imposed following his 

conviction of two counts of third-degree theft. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller and Kevin Cmelik, 

Assistant Attorneys General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

Allen Burdette Russell appeals the sentence imposed following his 

conviction of two counts of third-degree theft, class “D” felonies, in violation of 

Iowa Code sections 713.1 and .6A (2013). He contends the sentencing court 

considered an impermissible factor in sentencing him to a term of no more than 

five years in prison on each count, to run concurrently. Specifically, he 

complains the court impermissibly considered two disciplinary reports he 

received for fighting and destruction of property while in jail awaiting trial, which 

he alleges constitute unproven charges he did not admit to committing.

The district court must consider what sentence will provide the defendant 

with the maximum opportunity for rehabilitation while also protecting the 

community from further offenses by the defendant and others. See State v. 

Knight, 701 N.W.2d 83, 86 (Iowa 2005) (citing Iowa Code § 901.5). We will not 

overturn a sentence imposed by the district court unless the sentencing court 

abused its discretion or there was a defect in the sentencing procedure. See 

State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998). Relying on an unprosecuted 

offense that was not admitted by the defendant or otherwise proved is a defect in 

the sentencing procedure that requires the sentence be set aside and the case 

remanded to the district court for resentencing. Id.

The disciplinary reports considered by the district court were listed in the 

presentence investigation (PSI) report. The purpose of a PSI report is “to provide 

the court pertinent information for purposes of sentencing and to include 

suggestions for correctional planning for use by correctional authorities 

subsequent to sentencing.” Iowa Code § 901.2(4) (Supp. 2013). If the court 
3

orders a PSI, the investigator must inquire into the defendant’s criminal record 

and social history, as well as the harm the defendant presents to the community. 

Id. § 901.3(1)(b), (d). The court may consider any portion of the PSI report not 

challenged by the defendant. State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 

2000). Because Russell did not object to the statement in the PSI report that he 

had been disciplined for fighting and destruction of property while in jail,1the 

court was permitted to rely on that information.

Because the court properly relied on information contained in the PSI 

report that Russell did not object to, Russell has failed to show a defect in the 

sentencing procedure that requires resentencing. Accordingly, we affirm.

AFFIRMED.

 

1 The only objection Russell made to the PSI report concerned a statement that he had 

met certain people in bars. Russell alleged he “met them on the streets and not in a 

bar.”