IN THE COURT OF APPEALS OF IOWA

No. 14-1208

Filed March 25, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

REBECCA LYNN OELMANN,

Defendant-Appellant.

________________________________________________________________

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

District Associate Judge.

Rebecca Oelmann appeals from the sentence imposed following her guilty 

plea, asserting the district court considered an improper sentencing factor. 

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney 

General, Eric Simonson, County Attorney, and Jonathan Murphy, Assistant 

County Attorney, for appellee.

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

DOYLE, J.

Rebecca Oelmann appeals the sentence imposed following her guilty 

plea. She asserts the sentencing court considered an improper sentencing 

factor. We find the district court did not rely on an improper factor in sentencing 

Oelmann. Accordingly, we conclude there was no defect in the sentencing 

procedure. We therefore affirm.

The State originally charged Oelmann with the crime of theft in the second 

degree, in violation of Iowa Code sections 714.1(1) and 714.2(2) (2013), a class 

“D” felony. The charge arose out of Oelmann’s presenting checks written on a 

closed account on September 3 and 4, 2013. Oelmann and the State reached a 

plea agreement. The State agreed to amend the charge to theft in the third 

degree, in violation of Iowa Code sections 714.1(6) and 714.2(3), an aggravated 

misdemeanor, and Oelmann agreed to plead guilty to the amended charge. The 

State also agreed to recommend a sentence of 120 days in jail with all but four 

suspended, in forty-eight-hour increments, probation for one year, restitution, 

plus a fine, costs, and miscellaneous surcharges. Additionally, the sentence 

would run concurrent with a sentence imposed against Oelmann in Franklin 

County. The court accepted Oelmann’s guilty plea and set sentencing for 

hearing. At the sentencing hearing, held in July 2014, the district court imposed 

a sentence of 180 days in jail with all but thirty days suspended. Oelmann was 

placed on probation for two years. She was also ordered to pay restitution, a 

fine, court-appointed attorney fees, court costs, and miscellaneous surcharges. 

She now appeals asserting the sentencing court considered an improper factor in 

imposing the sentence.
3

Our review is for correction of errors at law. State v. Thomas, 547 N.W.2d 

223, 225 (Iowa 1996). The decision to impose a sentence within statutory limits 

is “cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d 

720, 724 (Iowa 2002). The sentence will not be upset on appeal “unless the 

defendant demonstrates an abuse of trial court discretion or a defect in the 

sentencing procedure.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). 

An abuse of discretion is found only when the sentencing court exercises its 

discretion on grounds or for reasons clearly untenable or to an extent clearly 

unreasonable. Thomas, 547 N.W.2d at 225. The consideration by the trial court 

of impermissible factors constitutes a defect in the sentencing procedure. Id.

One impermissible factor is the consideration of another criminal offense 

where the facts before the court do not show the defendant committed the 

offense. See State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). It is a wellestablished rule that a sentencing court may not rely upon additional, unproven, 

and unprosecuted charges where the defendant has not admitted to the charges 

or facts are not presented to show the defendant committed the offenses. See 

State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). When a sentence is 

challenged on the basis of improperly considered, unproven criminal activity, “the 

issue presented is simply one of the sufficiency of the record to establish the 

matters relied on. There is no general prohibition against considering other 

criminal activities by a defendant as factors that bear on the sentence to be 

imposed.” Longo, 608 N.W.2d at 474. However, if a court uses any improper 

consideration in determining a sentence, resentencing is required. Grandberry, 

619 N.W.2d at 401. This is true even if the improper factors are a “secondary 
4

consideration.” Id. We are not free to “speculate about the weight the trial court 

mentally assigned to [the improper factors].” State v. Messer, 306 N.W.2d 731, 

733 (Iowa 1981). 

At the sentencing hearing, the court asked about Oelmann’s criminal 

history. The prosecutor informed the court “there’s a second degree theft out of 

Franklin County which was sentenced in February of this year.” Oelmann’s 

counsel agreed that was correct and agreed Oelmann’s five-year prison 

sentence on that conviction had been suspended. It appears that offense 

occurred in June 2013. Prior to pronouncing sentence, the court explained the 

factors it considered in fashioning a sentence:

Ms. Oelmann, you are hereby adjudicated guilty of the crime 

of Theft in the Third Degree, an aggravated misdemeanor, in 

violation of Iowa Code Sections 714.1(6) and 714.2(3). 

In terms of a sentence, I believe the sentence I am to 

impose here today provides for your rehabilitation and protection of 

the community. To the extent these details have been made known

to me, I have taken into account your age, your lack of 

employment—or I guess your employment circumstances, which is 

some employment because you are making some earnings from 

your babysitting job for your cousin, your family circumstances, 

your criminal history, including the fact that you had already been 

charged with theft in the second degree and ultimately convicted of 

that theft in the second degree and ultimately convicted of that 

offense when you committed the crime that brings you here today.

Defense counsel objected, “I believe we determined that she was convicted 

after.” The court responded, “She was convicted after. She was charged, the 

Trial Information was filed July 29. . . . Complaint filed July 15. Offense date 

here is September 2nd.” The court went on to state, “My point being that you 

knew that you had—were in trouble for the prior crime when you committed this 

one so you knew those charges were pending when this one was committed.” 
5

On appeal Oelmann argues, 

The court relied on the misapprehension that she had already been 

convicted of theft in the second degree in Franklin County when 

she committed the theft charge in this case. The court’s mistaken 

belief is akin to an improper factor because it is not based on the 

facts admitted and proven in the record. 

We disagree. 

In sentencing Oelmann, the court did not rely on a misunderstanding 

about the timing of Oelmann’s Franklin County theft conviction. After an 

exchange with defense counsel, the court corrected its original statement. The 

record is clear the court was well aware Oelmann’s Franklin County theft charge 

was only pending when Oelmann committed the theft offense in Wright County, 

and that she was later convicted on the Franklin County charge. Despite the 

clarification made by counsel and correction made by the court prior to 

pronouncing sentence, Oelmann asserts that “even though the error was brought

to the court’s attention, the record shows that the court still took this 

impermissible consideration into account” and that “the court nevertheless relied 

on the misapprehension that she’s been convicted of the theft in Franklin County 

before committing the present theft in Wright County.” No such showing is made 

in the record. 

Oelmann further argues that although the court corrected itself, “this does 

little to dispel the notion that [the] court still had the previous improper 

consideration in mind” because “the court never expressly disavowed reliance on 

the impermissible factor.” A disavowal was unnecessary. The court’s correction 

was unequivocal: “My point being that you knew that you had—were in trouble 

for the prior crime when you committed this one so you knew those charges were 
6

pending when this one was committed.” The court merely considered the fact 

that Oelmann was already in legal trouble for the Franklin County crime when 

she committed another crime in Wright County, which was true. It was admitted 

Oelmann committed the crime of theft in Franklin County in late June 2013, a 

crime to which she pled guilty. 

We conclude the district court did not consider any impermissible factors 

in imposing Oelmann’s sentence. We therefore affirm.

AFFIRMED.