Full Opinion

IN THE COURT OF APPEALS OF IOWA _______________ No. 25-1557 Filed October 7, 2026 _______________ State of Iowa, Plaintiff–Appellee, v. Daniel Joseph Brubaker, Defendant–Appellant. _______________ Appeal from the Iowa District Court for Keokuk County, The Honorable Daniel P. Wilson, Judge. _______________ AFFIRMED _______________ Natalie E. Shroyer (until withdrawal) and Austin Jungblut of Parrish Kruidenier, L.L.P., Des Moines, attorneys for appellant. Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney General, attorneys for appellee. _______________ Considered without oral argument by Greer, P.J., and Schumacher and Buller, JJ. Opinion by Buller, J. 1 BULLER, Judge. Daniel Brubaker appeals his sentence following guilty pleas after he endangered and injured a group of children while recklessly driving a truck- trailer after drinking. Brubaker argues the State was required to give pre-hearing notice of its sentencing witnesses and the district court abused its discretion when it sentenced him to prison. We conclude the former claim was not preserved and the latter does not have merit, so we affirm. BACKGROUND FACTS AND PROCEEDINGS As part of an event, Brubaker drove a truck hauling a goose-neck trailer containing unsecured middle-school-aged children. Brubaker, who drank alcohol before and while driving the children, accelerated to an unsafe speed on muddy gravel roads. Children were screaming and yelling for him to slow down. Brubaker eventually lost control of the truck and drove into a ditch, which threw children from the trailer. Brubaker kept driving and ran over at least one of the children, crushing her pelvis and fracturing four of her vertebrae. In total, thirteen children were injured. Brubaker did not call an ambulance; he called his wife, had her pick him up, went to a second location, changed cars, and drank more alcohol. Brubaker ultimately pled guilty to three counts of neglect of a dependent person, class “C” felonies in violation of Iowa Code section 726.3 (2023), and ten counts of child endangerment resulting in bodily injury, class “D” felonies in violation of section 726.6(7). A contested issue at sentencing was whether Brubaker had made false statements to the court and law enforcement. During the plea hearing, Brubaker told the court that law enforcement arrived before he fled the scene. At sentencing, the State put on evidence proving that could not be true based 2 on the timeline of events. Brubaker also made statements to other persons indicating he wasn’t drinking or speeding, and the State again put on evidence proving otherwise. Defense counsel objected to the State’s evidence on these issues, claiming the testimony would be “more prejudicial than probative” and “not relevant.” The assistant attorney general prosecuting the case responded that he believed it was necessary for him to put on evidence to avoid any accusation the State had urged unproven facts as the basis for its sentencing recommendation. The court overruled the defense objection in part, explaining that it would “sort out” for itself whether the evidence proved Brubaker had made false or inconsistent statements and whether that should impact his sentence. Brubaker also put on his own sentencing evidence, including “many letters of character and support” and testimony from a forensic psychologist who performed an evaluation. In allocution, Brubaker expressed regret. After hearing several victim impact statements, the court sentenced Brubaker to prison, with consecutive terms for one class “C” felony and one class “D” felony, with the remainder concurrent. The court gave a lengthy explanation of its reasons for sentencing. It listed mitigating factors, including Brubaker’s lack of criminal history, involvement in the community, employment, family circumstances, that he had “somewhat expressed genuine remorse,” and that he seemed unlikely to re-offend. Aggravating factors included the harm to vulnerable children, Brubaker’s conduct after the crime that was “calculated to evade or avoid responsibility for [his] actions,” and the need for general deterrence. The court concluded the “balance” of these factors warranted a prison sentence, with two counts consecutive to reflect the differing levels of offense and corresponding levels of injuries. 3 Brubaker appeals, challenging whether the State was required to give notice of its witnesses at sentencing and whether the district court abused its discretion when sentencing him to prison. We consider each after evaluating error preservation on the first claim. NOTICE OF SENTENCING WITNESSES We recognize the error-preservation rules for sentencing are arguably in flux as a consequence of recent supreme court decisions. But we do not think this case presents a close question. And the State’s failure to contest error preservation does not relieve us of our obligation to independently assess the question. See Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470–71 (Iowa 2000). Brubaker’s complaint on appeal is that, under State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990),1 the State did not give adequate notice it would be calling witnesses at the sentencing hearing. Brubaker made a standing objection below to these witnesses’ testimony, arguing it was “more prejudicial than probative” and “not relevant.” He never objected on the grounds that notice was required, under Ashley or otherwise. Under longstanding case law, “Nothing is more basic in the law of appeal and error than the axiom that a party cannot sing a song to us that was not first sung in trial court.” State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). Our court has applied this principle specifically with regard to Ashley and concluded preservation is required for us to review a witness-notice claim. See State v. 1 In its appellee brief, the attorney general casts doubt on Ashley’s vitality, suggesting it was wrongly decided from the start or has been abrogated by the 2023 revised rules of criminal procedure and subsequent legislation. We pass on these questions given our resolution of the issue and our role as an intermediate appellate court. 4 Wiles, No. 22-1391, 2023 WL 8801795, at *4 (Iowa Ct. App. Dec. 20, 2023). As in Wiles, the failure to preserve error ends the analysis. The supreme court’s recent decisions do not change that conclusion. In State v. Hallock, the supreme court expressly preserved our published decision in State v. Voshell, emphasizing that error was not preserved when the defendant had the opportunity to object to a filed victim impact statement earlier in the hearing and declined to do so. Hallock, 31 N.W.3d 36, 44 (Iowa 2026) (examining Voshell, 12 N.W.3d 1, 3–4 (Iowa Ct. App. 2024)). The Hallock court also cited its own decision in State v. Pirie (again affirming our decision below), paraphrasing its holding as “finding that the defendant had an obligation to object in the district court to a remote sentencing proceeding.” Id. (citing Pirie, 18 N.W.3d 238, 248–49 (Iowa 2025)). Voshell and Pirie are both controlling here and require objections to defective sentencing procedures to preserve error. So too for State v. Gordon, requiring an objection to consideration of risk assessments, which remains good law. 921 N.W.2d 19, 22–24 (Iowa 2018). As in those cases, Brubaker had the opportunity to object—and in fact did object on grounds other than those he presses on appeal. Brubaker’s failure to preserve error precludes review. Even if error was preserved, we doubt Ashley—to the extent it’s still good law—would warrant relief on this record. There is no indication that Brubaker was surprised or caught off guard by the State’s witnesses at sentencing. Brubaker’s defense counsel objected to the merits and weight the evidence should receive—not lack of notice. The likely explanation why, from our review of the record, is that there was no surprise: the evidence the State offered was substantially included in the written plea agreement, minutes of testimony, and presentence investigation report. While presenting the evidence through live witnesses may have had more flourish than relying 5 on the cold documents, we cannot say there was any violation of an Iowa statute, deficient notice, or prejudice to Brubaker. Cf. Ashley, 462 N.W.2d at 282–83 (finding violations, deficient notice, and prejudice). ABUSE OF DISCRETION AT SENTENCING Brubaker’s second challenge—asserting an abuse of discretion when the court selected prison over probation—is generally exempt from our error- preservation rules. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). “[T]he decision of the district court to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of inappropriate matters.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). To show an abuse of discretion, a defendant bears the burden to affirmatively show that the district court relied on improper factors or clearly untenable grounds. State v. Sailer, 587 N.W.2d 756, 759, 762 (Iowa 1998). “Our task on appeal is not to second-guess the sentencing court’s decision.” State v. Damme, 944 N.W.2d 98, 106 (Iowa 2020). Yet that is largely what Brubaker asks us to do—second-guess the weight afforded to various sentencing factors. The sentencing court considered a long list of mitigating factors and concluded the aggravating factors outweighed them and warranted a prison sentence. Contrary to Brubaker’s claim, a district court can reasonably conclude that one or more aggravating factors outweigh multiple mitigating factors that carry less weight. We discern no abuse of discretion. A prison sentence for drunk and reckless driving that caused serious or bodily injury to more than a dozen children is not unreasonable by any measure. AFFIRMED. 6