IN THE COURT OF APPEALS OF IOWA

No. 17-1139

Filed February 21, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ANDREW ROBERT SHADOW,

Defendant-Appellant.

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Appeal from the Iowa District Court for Bremer County, Peter B. Newell, 

District Associate Judge.

Andrew Shadow challenges his sentence following his conviction for

operating while intoxicated, second offense. SENTENCE VACATED AND CASE 

REMANDED FOR RESENTENCING.

Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant 

Attorney General, for appellee.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
2

DOYLE, Presiding Judge.

Andrew Shadow pled guilty to operating while intoxicated (OWI), second 

offense, in violation of Iowa Code section 321J.2(1) and (2) (2016), an aggravated 

misdemeanor. The district court sentenced Shadow to prison for an indeterminate 

term, not to exceed two years, to be served in an OWI Prison Program. In this 

appeal, Shadow challenges his sentence, contending the district court relied on 

impermissible sentencing factors. 

We review sentencing decisions for correction of errors at law. See State 

v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). A sentencing decision will not be 

reversed absent a showing of an abuse of discretion or some defect in the 

sentencing proceeding. See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). 

Reliance on an impermissible sentencing factor is a defect in the sentencing 

proceeding. See id. One inappropriate matter the sentencing court may not 

consider is an unproven or unprosecuted offense. See State v. Jose, 636 N.W.2d 

38, 41 (Iowa 2001). Because of the strong presumption in favor of a district court’s 

sentencing decision, a defendant must make an affirmative showing the 

sentencing court relied on an unproven offense. See id. We will neither assume 

nor infer the district court relied on an impermissible factor without clear evidence 

in the record to the contrary. See Formaro, 638 N.W.2d. at 725. 

Shadow was charged with OWI, second offense, resulting from a February 

2016 incident. He pled guilty to the offense, and his plea was accepted at a plea 

hearing. Sentencing was set for July 11, 2017, and preparation of a presentence 

investigation (PSI) report was ordered. Shadow was charged with driving while 

barred, resulting from a December 2016 incident. He pled guilty to the offense at 
3

a July 11, 2017 plea hearing, and the court accepted his plea. Shadow’s OWI and 

driving-while-barred sentencing hearing immediately followed. The court entered 

separate judgments and sentences on each offense. Shadow filed notices of 

appeal in both matters. On appeal, Shadow only challenges his OWI sentence—

specifically, the prison sentence and placement in an OWI Prison Program.

During the sentencing portion of the hearing, the prosecutor related 

Shadow’s criminal record to the court. The prosecutor also stated: “Since 

[Shadow] has been arrested for the charge of OWI-Second, [he] has been arrested 

six times. The majority of them are traffic charges, but it shows a complete 

disregard for the law.” In sentencing Shadow to prison and the OWI Prison 

Program on the OWI charge, the court stated:

I think based on your prior criminal history a prison sentence is 

merited. I think that as long as the Department of Correctional 

Services thinks that you can benefit from the treatment aspect of

incarceration, it’s worth giving that a try to make sure that you don’t 

come back to court. I would also say that I am influenced in this 

decision by the ongoing criminal activity that you seem to be involved 

in; you’ve got a number of pending charges. I guess that’s not really 

a factor for the court to consider, um, but I would take into 

consideration this driving while barred that you committed after this 

matter was pending. 

It is the sentencing court’s statement that it was “influenced in this decision by the 

ongoing criminal activity that you seem to be involved in; you’ve got a number of 

pending charges” that Shadow asserts are the impermissible factors considered 

by the court. “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.” Formaro, 638 N.W.2d at 725. Shadow contends the court’s self-
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correction—“I guess that’s not really a factor for the court to consider”—was not 

sufficient to remove the taint of referencing unproven charges. We agree.

 Although the sentencing court attempted to disclaim its reference to the 

pending charges, we cannot speculate about the weight the sentencing court gave 

to them.

1

 Since we cannot evaluate their influence, we must strike down the 

sentence. State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014).2 We therefore vacate 

Shadow’s OWI sentence and remand the case to the district court for resentencing 

before a different judge consistent with this opinion. See id. 

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

 

1 Although one of the pending charges reflected in the PSI was the driving-while-barred 

offense—an offense to which Shadow had just pled guilty, the PSI lists several other 

pending charges to which Shadow had not pled guilty. 

2 We note this case is unlike State v. Horst, No. 17-1171, 2018 WL 542638, at *2 (Iowa 

Ct. App. Jan. 24, 2018) (“However, unlike the district court in Lovell, the district court here 

never mistakenly indicated it considered the intoxication evidence.”), and State v. 

Balderas, No. 16-0261, 2017 WL 2181198, at *4 (Iowa Ct. App. May 17, 2017) (“This is 

not a case like Lovell, where the sentencing court initially cited an impermissible 

sentencing factor before attempting to disclaim the reference later in the hearing.”).