State of Iowa v. Brianna Leigh Moss

IN THE COURT OF APPEALS OF IOWA

No. 24-0224
Filed May 21, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

BRIANNA LEIGH MOSS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.

A defendant appeals her prison sentence after pleading guilty to criminal

mischief and possession of a controlled substance. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Considered without oral argument by Tabor, C.J., and Schumacher and

Chicchelly, JJ.
2

TABOR, Chief Judge.

Brianna Moss pleaded guilty to criminal mischief in the second degree and

possession of a controlled substance. The district court sentenced her to

concurrent prison terms of five years and 365 days. Moss raises two issues in this

appeal of her sentence. First, she contends that the court improperly relied on

unproven conduct—her failures to appear for sentencing and to maintain contact

with her probation officer. Second, she alleges that the court abused its discretion

by choosing prison over probation. Finding that the district court neither

considered impermissible factors nor abused its discretion by imposing

incarceration, we affirm Moss’s sentence.

I. Facts and Prior Proceedings

In October 2022, Davenport police responded to a 911 call reporting

“subjects attempting to take catalytic converters off vehicles” in a parking garage.

Responding officers found a Cadillac with gasoline “pouring out of it.” The officers

also spotted Moss and two others inside a nearby pickup truck. Through their

investigation, the officers determined that Moss and the other passenger acted as

“lookouts” while the driver drilled a hole in the Cadillac’s fuel tank to siphon the

gasoline. When the officers apprehended her, Moss admitted having

methamphetamine on her person.

The State charged Moss in a three-count trial information with conspiracy

to commit a non-forcible felony, a class “D” felony, in violation of Iowa Code

section 706.3(2) (2022); criminal mischief in the second degree, a class “D” felony,

in violation of sections 703.1, 703.2, and 716.4(1); and possession of a controlled

substance, a serious misdemeanor, in violation of section 124.401(5). Moss
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entered written guilty pleas to the criminal-mischief and possession counts. Under

the plea agreement, the State would move to dismiss the conspiracy charge and

recommend suspended sentences of five years on the criminal-mischief count and

365 days on the possession count. But under the agreement, if Moss violated the

terms of release, failed to cooperate with correctional services in preparing the

presentence investigation (PSI) report, or failed to appear as required, the State

could withdraw its recommendation without allowing Moss to withdraw her guilty

pleas.

The district court accepted Moss’s guilty pleas in January 2023 but deferred

its acceptance of the plea agreement until sentencing. The original PSI report

recommended supervised probation. The court ordered an addendum to the PSI

report after issuing two warrants for Moss’s arrest for failure to appear for

sentencing in April and July 2023. The September 2023 PSI report addendum

recommended incarceration, citing Moss’s failures to appear for sentencing,

failures to report to her probation officer in Black Hawk County,1 and “history of

absconding from probation.” The court issued a third warrant for Moss’s arrest for

failure to appear for sentencing in October 2023.

The sentencing hearing took place in January 2024. The State withdrew its

initial recommendation for suspended sentences and instead recommended

concurrent prison terms. In urging incarceration, the prosecutor emphasized that

Moss “has failed to appear for sentencing multiple times; failed to keep in contact

with the PSI investigator as well as her probation officer in Black Hawk County.”

1 Moss stipulated in her pending Black Hawk County case to having violated her

terms of supervision by failing to maintain contact with her probation officer.
4

Moss, on the other hand, sought probation. She did not object to any information

in the PSI. But her counsel highlighted her “good stable environment” living with

her parents, her past employment “cleaning houses,” her desire “to complete her

substance abuse treatment,” and her goal “to get back with her daughter.”

Moss’s counsel also explained her failures to appear for sentencing:

[I]n speaking with Ms. Moss, the first two times that she had missed
in this case, she was in custody in Black Hawk County. At the time
that we entered the plea in this case, Ms. Moss was in custody and
had been released. And at the time that she had been released after
taking the plea, I no longer had contact information for her. I didn’t
know where she was at and that she was in custody in Black Hawk
County.
In speaking with her again, it was this last time that she
missed court in October that would have been basically the time that
she kind of messed up in her head when the court date was and
didn’t make it there.

In her allocution, Moss added: “I am aware that I missed in October and for that, I

am truly sorry. . . . I was recently going through a loss of grieving over a pregnancy

that I miscarried the baby. With that being said, again, I am sorry for missing.”

Ultimately, the court declined Moss’s request for probation, imposing

concurrent prison terms of five years on the criminal-mischief count and 365 days

on the controlled substance count.2 Moss appeals that sentence.3

II. Scope and Standard of Review

We review sentencing decisions for the correction of legal error. State v.

McCollaugh, 5 N.W.3d 620, 627 (Iowa 2024). If a sentence falls within statutory

limits, we will not overturn it unless the defendant shows an abuse of discretion or

2 The court dismissed the conspiracy count under the plea agreement.
3 Moss established good cause to appeal following her guilty plea. See State v.
Damme, 944 N.W.2d 98, 104–05 (Iowa 2020).
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a defect in the sentencing procedure such as the court’s consideration of improper

factors. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). We will find an abuse

of discretion only if the court’s reasoning was clearly untenable or unreasonable.

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Iowa courts enjoy broad

discretion to rely on information presented at sentencing. State v. Headley, 926

N.W.2d 545, 550 (Iowa 2019).

III. Analysis

A. Consideration of an Improper Factor

Moss first contends that the district court considered an improper factor by

relying on unproven conduct—her failures to appear for sentencing and to maintain

contact with her probation officer.

Before reaching the merits of her contention, we address the State’s error

preservation challenge. Most sentencing challenges are exempt from error

preservation requirements. State v. Chawech, 15 N.W.3d 78, 84 (Iowa 2024). But,

according to the State, because “Moss had the opportunity to raise any objection

to the contents of the PSI at the time of sentencing, she has waived any complaint

about the court’s reliance on information to the extent it was obtained from the

report.” See id. (“[W]hen our rules or statutes provide a clear mechanism through

which the defendant can raise an issue before the district court, we have

sometimes required the issue to be timely raised.”). We disagree.

True, the PSI included information that Moss alleges the court improperly

considered. But because Moss claims that her sentence was procedurally

defective, she was not required to preserve error by objecting at sentencing. See

id.; State v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994) (providing that error
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preservation rules are “not ordinarily applicable to void, illegal or procedurally

defective sentences”).

Turning to the merits, we must decide whether the sentencing court relied

on unprosecuted charges that were not admitted by Moss or otherwise proven on

the record. See Formaro, 638 N.W.2d at 725. “[T]he issue presented is simply

one of the sufficiency of the record to establish the matters relied on.” State v.

Longo, 608 N.W.2d 471, 474 (Iowa 2000). If the court considers unproven conduct

in determining a sentence, we must remand for resentencing. State v. Grandberry,

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

At sentencing, the court assured the parties that it had “not given any

consideration to any entries in the criminal history section of [the PSI] report that

do not show an admission of guilt or an adjudication of guilt.” The court also

addressed Moss’s explanations for her failures to appear and the shifting PSI

recommendations:

Quite frankly, missing court because you are incarcerated
somewhere else is like the worst excuse in the world because that’s
your actions that caused you to be there. And I notice that the [PSI
report] that was originally filed back on April 14, 2023, recommends
probation. In the addendum however, they switch and recommend
incarceration.

The court then quoted the PSI report:

“Departmental records indicate that the defendant has failed to report
for three scheduled office visits with her Black Hawk County
Probation/Parole Officer Gina Jones. PPO Jones filed a revocation
with the Court due to her failing to maintain contact. She was
apprehended on July 6, 2023, and stipulated to the violations against
her. She was sentenced to 30 days in jail and released back to
supervision on August 1, 2023. She failed to report to PPO Jones
following her release from jail. At this time of this writing, PPO Jones
has not had successful communication with the defendant.” Then it
further reads, “The defendant has a history of absconding from
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probation in Henry County, Iowa, and now in Black Hawk County,
Iowa. The defendant has been screened and denied placement at
the Department’s residential correctional program for females at the
Davenport Work Release Center.”

After that, the court explained its reasons for rejecting probation:

Quite frankly, I think you are forcing my hand and I am going
to have to go with incarceration. . . . The reasons for the sentence is
you missed three sentencings. You got in more trouble in other
counties. You failed to meet with your probation officer. You are not
giving me any indication at all that you would be successful under
probation, thus forcing my hand, and you are old enough to know
better. And your criminal history says that . . . this isn’t all new to
you. So you should know better.

Seizing on those statements, Moss argues that the “court employed an

improper factor in relying upon criminal or violative conduct which was neither

admitted nor proven.” As Moss points out, she was not convicted for her failures

to appear for sentencing. Moss also insists

the record does not establish that [her] arrest and incarceration in
Black Hawk County at the times of her failures to appear for her Scott
County sentencings resulted in an ultimate disposition of conviction
or stipulated violation so as to support the court’s conclusion that
“that’s your actions that caused you to be there.”

Lastly, Moss contends that the court improperly relied on the allegation in the PSI

addendum that she “failed to report to PPO Jones after her release from jail” in

August 2023. Moss argues the court’s faulty reliance requires resentencing.

Moss is correct that her failures to appear and to maintain contact with her

probation officer were not prosecuted. But that’s different from being unproven.

First, Moss did not object to any information in the PSI reports. Thus, the court

could consider the reports of her failures to appear for sentencing and to maintain

contact with her probation officer. See Grandberry, 619 N.W.2d at 402 (“In

determining a defendant’s sentence, a district court is free to consider portions of
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a presentence investigation report that are not challenged by the defendant.”).

Second, the docket included orders to issue bench warrants for Moss’s failures to

appear for sentencing in April, July, and October 2023.4 What’s more, Moss and

her counsel acknowledged at the January 2024 sentencing hearing that she had

failed to appear for the three previously scheduled proceedings. This record was

sufficient to establish Moss’s failures to appear and to maintain contact with her

probation officer. See id. at 402–03. Thus, the court did not consider an improper

factor in determining Moss’s sentence.

B. Abuse of Discretion

Moss also alleges that the district court abused its discretion by imposing

prison rather than probation. As mitigating factors, she emphasizes her stable

housing, her potential for employment, her hope to complete substance-use

treatment, and her “desire to reunite with her daughter.” But the district court’s

decision “to impose a particular sentence within the statutory limits is cloaked with

a strong presumption in its favor.” Formaro, 638 N.W.2d at 724. And it is not our

task on appeal to second guess that decision. Id. at 725. While the district court

could have granted probation, it did not abuse its discretion by declining to do so.

It was reasonable for the court to impose concurrent prison terms given its rational

concern that Moss could not successfully complete probation.

AFFIRMED.

4 The judge who sentenced Moss signed the April order.