Opinion
No. 2-018 / 01-0627.
Filed February 6, 2002.
Appeal from the Iowa District Court for Polk County, SCOTT D. ROSENBERG, Judge.
The defendant appeals the sentence entered following his conviction for distribution of schedule II controlled substance to a minor. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, Stephanie Cox and Gary Kendall, Assistant County Attorneys, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
The defendant, Jerry J. Ballew, appeals the sentence imposed following his plea of guilty to the charge of distribution of a schedule II controlled substance to a minor in violation of Iowa Code sections 124.406, 902.9 and 902.3 (1999). He claims the trial court abused its discretion in sentencing him to a term of imprisonment rather than granting a suspended sentence and probation. Finding no abuse of discretion, we affirm.
On August 31, 2000, Ballew, a cab driver, was dispatched to a Des Moines area high school to pick up a fourteen-year-old girl and drive her to a youth shelter. After picking up his fare, Ballew learned the girl had recently run away from a youth shelter. Ballew spoke with the female about drugs and eventually asked her to get high.
The defendant drove to a street corner and purchased crack cocaine. He then went to a convenience store where he bought the materials necessary to construct a pipe. Ballew and the girl smoked the crack.
Ballew returned to the street corner, bought more crack cocaine and smoked it with the female until she became ill and vomited in his cab. After cleaning his cab, Ballew drove the girl to the youth shelter.
The defendant is thirty-seven years old and the father of three children. According to his version of the events, he believed the girl to be eighteen years of age.
On February 21, 2001, the defendant appeared before the court and pled guilty to one count of distribution of a schedule II controlled substance to a minor. The district court accepted his plea and ordered the preparation of a presentence investigation report (PSI).
On April 9, 2001, Ballew appeared before the district court for sentencing. The court sentenced him to a term of imprisonment not to exceed twenty-five years. He must serve a minimum of five years imprisonment before becoming eligible for parole. Ballew appeals the sentence, claiming the district court abused its discretion in refusing to suspend his sentence and grant him probation.
Our scope of review is for correction of errors at law. Iowa R. App. P. 4. The defendant does not assert the sentence imposed is outside the statutory limits. Therefore, the sentence will be set aside only for an abuse of discretion. State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991). An abuse of discretion is found where the sentencing court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Privitt, 571 N.W.2d 484, 486 (Iowa 1997). The reasoned exercise of discretion is the hallmark of any proper sentencing procedure. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998).
Ballew contends the imposition of a prison sentence constituted an abuse of discretion on the part of the sentencing court. In support of his argument he mentions his cooperation with law enforcement officials, his remorse, his lack of a significant criminal record and his history of drug abuse. He argues that long-term counseling rather than imprisonment would better serve his and society's interests.
We reject Ballew's claim that the district court abused its discretion in sentencing him to incarceration. In applying its discretion in sentencing matters, the district 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." State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). Each sentencing decision must be made on an individual basis, and no single factor alone is determinative. State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). Iowa Code section 901.5 provides that the court must also determine which sentence "will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others."
In the present case, the prosecution and the PSI both recommended a sentence of imprisonment. The court specifically mentioned that a reduction of sentence was not appropriate due to the nature and circumstances of the offense. The court observed, "the delivery of a drug to a fourteen-year-old child is in this court's mind an extremely serious offense which undermines the attempts by law enforcement, schools, and parents, to try to get kids not to do drugs or to stay off of them or to get help." The court's sentencing order also indicates the court considered the recommendation of the PSI, the age of the defendant, his prior criminal record and the fact that probation would lessen the seriousness of the offense. The court further explained that probation would not reasonably protect the public from the defendant and would not provide him with a maximum opportunity for rehabilitation. We conclude the district court did not abuse its discretion in imposing a sentence of incarceration. Accordingly, we affirm Ballew's conviction.
AFFIRMED.