                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1625
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TODD ALAN WOODWORTH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Christopher C. Foy,

Judge.



      Todd Woodworth appeals the sentence imposed following a stipulated

agreement entered into between the State and Woodworth at postconviction

relief proceedings. AFFIRMED.




      Sarah A. Reindl of Reindl Law Firm, Mason City, for appellant.

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

Attorney General, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.

         Todd Woodworth appeals the sentence imposed following a stipulated

agreement entered into between the State and Woodworth at postconviction

relief (PCR) proceedings. We affirm.

         On September 21, 2015, a hearing was held for purposes of sentencing

Woodworth for his 2004 convictions for first-degree arson and second-degree

arson.

         The offenses occurred more than a decade ago.        On two separate

occasions, Woodworth was involved in setting fire to homes. On December 16,

2002, the State charged Woodworth, as a principal or aider/abetter, with first-

degree arson, second-degree arson, five counts of attempted murder, and two

counts of conspiracy involving the fires set on two of his neighbors’ properties.

The date of offense for the first-degree arson charge (count 1) was October 11,

2001, and the date of offense for the second-degree arson offense (count 5) was

October 13, 2001. Woodworth rejected a plea offer. A jury trial was held, and

Woodworth was found guilty of all charges. The conspiracy counts merged with

the arson convictions, and on January 20, 2004, the district court sentenced

Woodworth to serve the sentences on counts 1 through 3 concurrently to each

other but consecutively to the concurrent sentences imposed on counts 5

through 8.

         On direct appeal, among other things, Woodworth challenged the

sufficiency of the evidence of four of the five convictions for attempted murder.

State v. Woodworth, No. 04-0096, 2006 WL 228769, at *3 (Iowa Ct. App. Feb. 1,
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2006). We concluded there was substantial evidence to support the attempted-

murder convictions. Id. at *3-6.

       In a PCR action, Woodworth asserted he would have taken the State’s

plea offer had he been properly informed as to the sentences involved in the plea

agreement. On February 2, 2015, an order was filed in the PCR action, which

provided in part:

       The parties reached an agreement whereby the application for
       postconviction relief will be dismissed and the defendant will be
       resentenced to count I, first degree arson, a class “B” felony, and
       count V, second degree arson, a class “C” felony, following the
       completion of the presentence investigation report [PSI]. At the
       time of sentencing, the State will recommend that these sentences
       run concurrently inasmuch as that offer was made to the defendant
       prior to the original trial commencing in this matter. The court
       advised the defendant on the record that any recommendation by
       the State was not binding upon this court. The parties have
       previously stipulated that the assistance of trial counsel was
       ineffective and the defendant had been incorrectly advised
       regarding the potential consequences of the offer.

Pursuant to the parties’ stipulation, the district court entered an order granting the

PCR application and a sentencing hearing was scheduled.1

       At the time of sentencing on January 12, 2016, Woodworth had served

twelve years in prison. The PSI recommended consecutive sentences on the

two arson convictions.       Per the stipulation, the State recommended the

sentences be run concurrently. Woodworth argued for concurrent sentences.

The sentencing court observed,




1
 We do not have access to the record of the PCR action or any record for that matter to
explain the unusual resolution of the PCR action, that is, the parties stipulated to a
dismissal but the court granted the PCR. But clearly, a dismissal would not have
afforded the ability to resentence the defendant, which was the essence of their
agreement due to prior ineffective assistance of counsel.
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              And it’s the court’s opinion that even though the other crimes
       that the jury found Mr. Woodworth guilty of have since been, um,
       dropped, withdrawn, basically addressed in the agreement that was
       reached as part of the disposition in the postconviction relief action
       brought by Mr. Woodworth, I don’t think as a judge that I can ignore
       the fact that the State presented evidence that a jury found
       established beyond a reasonable doubt that Mr. Woodworth had,
       um, attempted to murder [named people].”
              ....
              And while it appears to the Court you have made significant
       strides towards rehabilitation during your incarceration, um, given,
       um, the conduct that you engaged in, even if I focus only on the
       arson offenses for which I’m sentencing you, these were two
       separate offenses, happened on two separate days and showed a
       disregard on your part for, um, certainly others’ property.

       The court imposed a twenty-five year term on count 1 and a ten-year term

on count 5, which were to be served consecutively to each other. The court

emphasized:

              It’s clear from the—the PSI that you are attempting to make
       constructive positive use of your time. That you’re trying to find
       help and assistance that will allow you to stay on the right track
       once you are released. . . .
              For the reasons I’ve stated earlier though, I do believe that
       consecutive sentences are most appropriate in this case, primarily
       due to the seriousness of the crimes themselves and the fact that
       they were committed on separate dates. It wasn’t part of a single
       course of conduct. And I think to . . . to send the appropriate
       message to others that . . . the court will treat these offenses
       seriously. It’s—It’s necessary to run the sentences consecutive.

       Woodworth appeals, claiming the court improperly considered the

attempted-murder convictions because they “were dropped as part of successful

postconviction relief.”

       A sentencing court may not consider an unproven or unprosecuted

offense in sentencing a defendant unless there are facts presented to show the

defendant committed the offenses or the defendant admits to the charges. State

v. Washington, 832 N.W.2d 650, 659 (Iowa 2013). This case, however, comes to
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us in a unique procedural posture. We agree with the sentencing court that it

was not required to ignore charges that had been proved beyond a reasonable

doubt to a jury and affirmed on appeal. State v. Grandberry, 619 N.W.2d 399,

401 (Iowa 2000) (“We have recognized that, ‘when 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.’ The standard of proof during the sentencing

stage is lower than the standard used during trial.” (citations omitted)). We

affirm.

          AFFIRMED.
