Opinion
No. 3-435 / 02-1527.
Filed June 25, 2003.
Appeal from the Iowa District Court for Iowa County, David M. Remley, Judge.
A defendant appeals the sentence imposed upon his conviction for OWI, third offense. AFFIRMED.
Fred Stiefel, Victor, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Lewis McMeen, County Attorney, and Timothy McMeen, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
William Joe Ealy appeals the sentence imposed upon his conviction for operating while intoxicated (OWI), third offense, in violation of Iowa Code section 321J.2 (2001). He contends the district court abused its discretion in sentencing him to a five-year term of incarceration. We affirm.
Ealy hit a deer while driving and knocked out one of his headlights. A police officer saw the headlight was out and stopped Ealy's vehicle. Ealy had been drinking and the officer arrested him for OWI. Ealy pled guilty to OWI third offense, a class D felony, and the court sentenced him to an indeterminate term of no more than five years imprisonment and a fine of $2500 plus surcharge, pursuant to sections 321J.2(2)(c) and 902.9(5).
Ealy claims the district court "abused its discretion in sentencing Ealy to prison instead of granting Ealy probation." When a sentence falls within statutory limits it will only be set aside for an abuse of discretion. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996); State v. Mai, 572 N.W.2d 168, 170 (Iowa Ct.App. 1997). The sentence imposed by the district court is within the limits set by sections 321J.2(2)(c) and 902.9(5).
A court's sentencing decision carries a strong presumption in its favor which will not be overcome absent an affirmative showing of an abuse of discretion by the defendant. State v. Sumpter, 438 N.W.2d 6, 10 (Iowa 1989). No abuse of discretion will be found unless the defendant shows that such discretion was exercised for reasons clearly untenable or to an extent clearly unreasonable. Thomas, 547 N.W.2d at 225.
In applying discretion, the court should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual.
State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (citing State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)). In considering sentencing options the court is to determine, in its discretion, which of the authorized sentences will provide both the maximum opportunity for the rehabilitation of the defendant and for the protection of the community from further offenses by the defendant and others. Iowa Code § 901.5. Furthermore, the sentencing court is generally not required to give its reasons for rejecting particular sentencing options. Thomas, 547 N.W.2d at 225. A statement may be sufficient, even if terse and succinct, so long as the brevity of the court's statement does not prevent review of the exercise of the court's sentencing discretion. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989).
In imposing sentence here the district court stated
Mr. Ealy, you've made some positive steps, and you've done this before, made some positive steps, but I'm very concerned about whether you can sustain this on your own without some help other than AA. And I'm also concerned about the public, the motoring public and pedestrians, are at risk when you drive drunk. You had a test of .179, which is approaching twice the legal limit. This is your third OWI in less than three years.
The reasons given by the court for the sentence imposed included: Ealy's extensive prior record, including his two previous OWI's in the past three years; his poor performance on probation on one of his prior OWI's, that probation in fact having been revoked; the fact both the county attorney and the presentence investigator recommended incarceration; to hold Ealy accountable; and the sentence was the best means to provide Ealy with the maximum opportunity for rehabilitation and to protect the public.
The presentence investigation report confirms Ealy's extensive prior criminal record including two prior drunk driving convictions in the past three years and prior convictions for driving while suspended and while barred. In addition, Ealy had previously been incarcerated in 1993 for third degree burglary and in 1995 for escape of a felon. He had also been convicted in 1992 for felony forgery and had four previous convictions for theft. Furthermore, Ealy's prior performance on both probation and parole had been poor. The probation granted on one of his prior OWI's had been revoked and his parole had been revoked less than a year after he was released following his incarceration for third-degree burglary. Moreover, it appeared that prior sentences of lesser severity had been without deterrent effect.
We conclude the record here confirms the propriety of the sentence imposed by the district court. The sentence imposed was not based on grounds or reasons that were clearly untenable or unreasonable. We find no abuse of discretion by the district court and affirm the sentence imposed.