IN THE COURT OF APPEALS OF IOWA

No. 14-0378

Filed March 11, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

BRITTANY MARIE MCBRIDE,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, James D. Coil, 

District Associate Judge. 

Brittany McBride appeals the sentence imposed upon her conviction for 

operating while intoxicated, first offense. AFFIRMED.

Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney 

General, Thomas J. Ferguson, County Attorney, and Jeremy Westendorf, 

Assistant County Attorney, for appellee.

Considered by Vogel, P.J., Doyle, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 
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PER CURIAM

Brittany McBride pled guilty to a charge of operating while intoxicated, first 

offense, in violation of Iowa Code section 321J.2 (2013). Following sentencing, 

she appeals,1asserting 

THE TRIAL COURT IMPROPERLY CONSIDERED UNPROVEN 

OFFENSES IN DETERMINING THE DEFENDANT’S SENTENCE. 

We affirm. 

At sentencing the State’s recommendation included “one to two years of 

supervised probation.” The State argued that “it appears there is recidivist 

alcohol-related offenses.” The State indicated McBride had a “prior history that 

includes public intox from 2012. The blood alcohol level in that case was a .133.” 

It further stated McBride had been “convicted of possession of alcohol under 

legal age in 2012.” 

McBride pointed out that a substance abuse evaluation indicated she did 

not meet the criteria for abuse or dependency and that no treatment was 

recommended. She “acknowledged that she did have . . . two alcohol-related 

charges in the past” but urged they occurred at about the same time, “a fairly 

 

1

 McBride states error was preserved by filing a notice of appeal. However, this 

statement is erroneous. “For the notice of appeal has nothing to do with error 

preservation.” See Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in 

Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (Fall 

2006). “Our error preservation rules provide that error is preserved for appellate review 

when a party raises an issue and the district court rules on it.” State ex rel. Miller v. 

Vertrue, Inc., 834 N.W.2d 12, 20-21 (Iowa 2013). We nevertheless proceed to consider 

the issue raised by McBride, as no objection in the trial court is required in order to 

preserve error on a claim the sentencing court relied upon improper or impermissible 

factors. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). 
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chaotic time in her life.” She requested “that there be no probation . . . or in the 

alternative be one-year of self-probation.” 

The district court’s sentence included “supervised probation for a period of 

12 to 24 months to the Department of Correctional Services.” In imposing that 

portion of the sentence the court stated, in relevant part, its belief that “the 

sentence is appropriate based upon . . . your prior record of alcohol-related 

offenses.” McBride asserts the court improperly considered unproven offenses 

“not admitted by McBride.” The State asserts the court properly “considered 

[McBride’s] prior record of alcohol-related offenses in placing her on supervised 

probation.” 

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

Valin, 724 N.W.2d 440, 444 (Iowa 2006). “A sentence will not be upset on 

appellate review unless the defendant demonstrates an abuse of trial court 

discretion or a defect in the sentencing procedure, such as a trial court 

consideration of impermissible factors.” State v. Loyd, 530 N.W.2d 708, 713 

(Iowa 1995). “The use of an impermissible sentencing factor is viewed as an 

abuse of discretion and requires resentencing.” Thomas, 520 N.W.2d at 313 

(citing State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983)). “A district court may 

not consider an unproven or unprosecuted offense when sentencing a defendant 

unless (1) the facts before the court show the defendant committed the offense, 

or (2) the defendant admits it.” State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001). “If 

a district court improperly considers unprosecuted and unproven additional 
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charges, we will remand the case for resentencing.” State v. Formaro, 638 

N.W.2d 720, 725 (Iowa 2002).

“There is no general prohibition against considering other criminal 

activities by a defendant as factors that bear on the sentence to be imposed.” 

State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). “[W]hen a challenge is made 

to a criminal sentence on the basis that the court improperly considered 

unproven criminal activity, the issue presented is simply one of the sufficiency of 

the record to establish the matters relied on.” Id. “The standard of proof during 

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

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

“We will not draw an inference of improper sentencing considerations 

which are not apparent from the record.” Formaro, 638 N.W.2d at 725. “On our 

review, a district court’s sentencing decision enjoys a strong presumption in its 

favor. To overcome the presumption, a defendant must affirmatively show that 

the district court relied on improper evidence such as unproven offenses.” Jose, 

636 N.W.2d at 41 (citations omitted). 

In support of its sentencing recommendation of supervised probation, the 

State asserted that McBride was a “recidivist,” with prior alcohol-related 

“offenses” of possession of alcohol under legal age and public intoxication. 

McBride did not dispute the State’s explication of her criminal history but rather

“acknowledged” the two offenses and argued mitigating circumstances. We 

conclude the facts before the district court adequately show McBride committed 

the two prior offenses. We thus further conclude that the court’s consideration of 
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those prior offenses in ordering a period of supervised probation did not 

constitute consideration of impermissible sentencing factors. 

AFFIRMED.