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IN THE COURT OF APPEALS OF IOWA No. 9-456 / 08-1760 Filed July 22, 2009

STATE OF IOWA, Plaintiff-Appellee, vs. STEVEN PHILLIP RICHARDSON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Charles H. Pelton, Judge.

A defendant appeals his sentence for second-degree theft, claiming the district court (1) illegally imposed a $10 D.A.R.E. surcharge and (2) improperly considered unproven criminal conduct. SENTENCE VACATED IN PART.

Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, Michael L. Wolf, County Attorney, and Elizabeth Srp, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

2 VAITHESWARAN, P.J. Steven Richardson appeals his sentence for second-degree theft, in violation of Iowa Code section 714.2(2) (2007). He contends the district court (1) illegally imposed a $10 D.A.R.E. surcharge and (2) improperly considered unproven criminal conduct. The State concedes that the surcharge should not have been imposed. See Iowa Code

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