State of Iowa, Plaintiff–Appellee, v. Berina Sivac, Defendant–Appellant. (2026)

On appeal, Berina Sivac challenges the sentence she received after pleading guilty to theft in the first degree (a class “C” felony) and conspiracy to commit a non-forcible felony (a class “D” felony).¹ The charges stem from Sivac—or one or more co-conspirators—contacting the victim, telling the victim that the victim was facing federal criminal charges when no such charges existed, and demanding the victim pay money to avoid going to jail on the fictitious charges. Sivac or her co-conspirators successfully got the victim to pay money via these deceptive statements two different times.

Sivac received concurrent, suspended sentences, but she contends the district court abused its discretion by not granting her request for a deferred judgment. Specifically, she contends the court considered unproven conduct by (1) stating that the victim was “out ․ approximately $17,000”; (2) referring to Sivac's involvement in the crimes as “sophisticated”; (3) referring to her conduct as a “scam”; (4) characterizing the crimes as including “threats of jail” if she didn't pay; and (5) considering it to be an aggravating factor that Sivac “would not disclose the identity of her co-conspirators.” Although our review of sentencing decisions is for an abuse of discretion, our review is limited by the rule that a court cannot consider unproven conduct in reaching a sentencing decision. State v. Gordon, 921 N.W.2d 19, 24–25 (Iowa 2018). That said, the court's reliance on unproven conduct must be apparent from the record, as we will not draw an inference of such improper reliance. State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).

We start by rejecting a faulty premise upon which much of Sivac's argument is based. She contends the court improperly considered information in the minutes of testimony. But during her plea hearing, Sivac expressly admitted that the minutes were substantially correct. As such, the sentencing court was allowed to consider them. See State v. Black, 324 N.W.2d 313, 316 (Iowa 1982) (acknowledging that the sentencing court can “consider those facts contained in the minutes that are admitted to”). And the minutes disclosed that two co-conspirators called the victim, told her she had a warrant out for her arrest for failing to appear in federal court, and she needed to bring $10,000 in cash to pay for a bond to avoid being sent to jail. The victim withdrew $10,000 in cash and drove to the location specified by the callers, and Sivac approached the victim to receive the $10,000. The callers then told her a new charge had appeared, and the victim needed to pay another $7,000 to clear that charge. The victim withdrew another $7,000, returned to the specified location, and gave the money to Sivac. These facts contained in the minutes—which Sivac agreed were substantially correct— refute the first four of Sivac's claims that the court considered improper factors.

As noted, Sivac and her co-conspirators used deception to obtain $17,000 from the victim, so the dollar figure referenced by the court was admitted by Sivac. And using three people posing as federal authorities to deceive a victim into delivering the money can fairly be characterized as “sophisticated,” so there was no impropriety in the court referring to Sivac's actions as such.² There was also nothing improper about the court characterizing Sivac and her co-conspirators’ conduct as a “scam,” as that term is defined as “a fraudulent or deceptive act or operation,” which is what Sivac and her co-conspirators’ conduct was. See Scam, Merriam-Webster, https://perma.cc/KD8Y-YTDD (last visited Sept. 2, 2026). In fact, her attorney referred to it as such during the sentencing hearing. And finally, the entire scheme was based on telling the victim that she would be sent to jail on a federal warrant if she didn't deliver the money. It was fair to characterize Sivac and her co-conspirators’ conduct as using “threats of jail,” so no impropriety occurred by the court characterizing the conduct that way in deciding on a sentence.

That leaves Sivac's claim that the court acted improperly by considering Sivac's failure to provide the names of her co-conspirators in deciding her sentence. Sivac claims that her mental-health issues “may have impaired her ability to recall her co-conspirator,” so it was inaccurate to conclude that Sivac chose not to disclose her co-conspirators. The problem with Sivac's argument is that the presentence investigation report (PSI) included a statement that Sivac “would not or could not provide any additional information about those she was with,” and when Sivac was given the opportunity to correct any errors in the PSI, she did not challenge that statement. As such, the court was free to consider it in deciding on her sentence. See State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 2000) (“In determining a defendant's sentence, a district court is free to consider portions of a presentence investigation report that are not challenged by the defendant.”). Based on the statement in the PSI, the court's statement that Sivac “would not disclose the identity of her co-conspirators” was accurate. And Sivac's challenge is to the accuracy of the court's statement, not a challenge to the propriety of using that statement if it was accurate. Based on the unchallenged statement in the PSI, the court's statement was accurate, so no error occurred by the court considering it.

Having rejected each of Sivac's challenges, we affirm.

AFFIRMED.

FOOTNOTES

1.   Because Sivac challenges her sentence—which was neither mandatory nor agreed to pursuant to plea agreement—she has established good cause to appeal, which allows her appeal to proceed as a matter of right. See Iowa Code § 814.6(1)(a)(3) (2025); State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020).

2.   Sivac's reliance on State v. Battiste is misplaced. No. 24-1800, 2025 WL 1825428, at *1 (Iowa Ct. App. July 2, 2025). In Battiste, our court vacated a sentence and remanded for resentencing after the sentencing court referred to Battiste's criminal conduct as sophisticated. Id. at *3–4. But referring to Battiste's conduct as sophisticated was problematic only because it required consideration of the minutes, which Battiste not only didn't admit were accurate, but he objected to referring to them during the sentencing hearing. See id. at *2. In contrast, Sivac admitted the minutes were substantially correct, and those minutes show her participation in criminal conduct that can be fairly characterized as sophisticated.

Opinion by Ahlers, J.