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State v. Conlon

Court of Appeals of Iowa
Oct 26, 2005
707 N.W.2d 337 (Iowa Ct. App. 2005)

Opinion

No. 5-708 / 04-2049

Filed October 26, 2005

Appeal from the Iowa District Court for Buena Vista County, Joseph J. Straub (plea) and John P. Duffy (sentencing), Judges.

Dennis Lee Conlon appeals from a judgment and sentences on two counts of delivery of methamphetamine, arguing the district court considered an improper factor in sentencing him to prison. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Phil Havens, County Attorney, and David Patton, Assistant County Attorney, for appellee.

Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.


We must decide whether the district court considered an improper factor in sentencing a defendant to prison. We affirm.

I. Background Facts and Proceedings

Dennis Lee Conlon pled guilty to two counts of delivery of methamphetamine. Iowa Code §§ 124.401(1)(c)(6); 124.401(1)(b)(7) (1997). At the plea proceeding, the district court withheld approval of the plea agreement pending receipt of a presentence investigation report. The prosecutor stated Conlon was free to argue for a suspended sentence at the time of sentencing.

Conlon did not appear for sentencing and a bench warrant was issued for his arrest. Six years later, in mid-2004, authorities apprehended Conlon in California and returned him to Iowa for sentencing.

At the time of the new sentencing hearing, Conlon filed a motion in arrest of judgment. He argued the plea agreement was unenforceable because, six years earlier, "he was led to believe that he could request a suspended sentence when the strict interpretation of the law in existence at the time of the plea would deny the Defendant an opportunity for a suspended sentence." The district court denied Conlon's motion as untimely and turned to the sentencing issue.

On this issue, the court noted that defense counsel's representations concerning the new law were "correct" and the timing of sentencing in light of the new law was "problematic." The court then proceeded to sentence Conlon to prison on both counts of methamphetamine delivery, but for reasons entirely independent of the change in law. Specifically, the court noted that the prosecutor and the person who prepared the presentence investigation report recommended prison. The court continued,

Iowa Code section 907.3(3)(e) (1999) prohibits a court from suspending the defendant's sentence when the offense violates sections 124.401(1)(a) or 124.401(1)(b) and the controlled substance is methamphetamine. Conlon's attorney argued that the law was enacted on April 22, 1998, and was retroactive to July 1, 1997. We intimate no view concerning the applicability of the 1999 law to Conlon's sentencing on the second count of delivery of methamphetamine, charging a violation of section 124.401(1)(b).

I can say this. It's highly improbable that the court, at least myself, would have granted a suspended sentence upon pleas of guilty to these two drug offenses. And I-I would have to assume that maybe Mr. Conlon was aware that maybe the court would not grant a suspended sentence. If he was of the opinion at that time that a suspended sentence would be granted, chances are he would have been here for sentencing and a sentence would have been imposed and he would have been placed on probation, but instead of appearing for a sentence the defendant absconds and six years-more than six years have transpired, and the defendant has not seen fit to present himself to the court for sentencing.

So I have to look at the record as it stands at this time regarding the-the defendant's prior records of-record of conviction and his failure to appear for sentencing. I also have to look at the presentence investigation, which recommends a period of incarceration.

I don't think that it would send the proper message to the community for me at this time to suspend your sentence, Mr. Conlon. That message would be that you don't have to appear as ordered in Buena Vista County District Court for sentencing and you will still get a-a lenient sentence that you requested six years ago. And I am not-I am not going to go that route. The sentences are going to be for periods of incarceration in this case.

On appeal, Conlon argues the district court (1) erroneously accepted defense counsel's "change in law" argument and (2) abused its discretion in considering the fact that he failed to appear at the original sentencing hearing. We find it unnecessary to address the first argument because, although the district court accepted defense counsel's representations concerning the change in law, the court did not rely on those representations in sentencing Conlon. Accordingly, we proceed to consideration of the second issue.

II. Court's Consideration of Conlon's Failure to Appear

Conlon argues: "The Court, in sentencing [him], assumed that he was guilty of a crime for which he had been neither charged nor of which he had been convicted: Failure to Appear for Sentencing." He submits there was no evidence to establish Conlon absconded and the court "abused its discretion in considering an unproved, unadmitted, uncharged allegation."

Our scope of review is for errors of law. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). The key question is not whether the district court abused its discretion in sentencing Conlon but whether the court considered improper factors. Id. at n. 1. In answering this question, we note that "[t]here is no general prohibition against considering other criminal activities by a defendant as factors that bear on the sentence to be imposed." State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). When a defendant claims the sentencing court improperly considered unproven criminal activity, "the issue presented is simply one of the sufficiency of the record to establish the matters relied on." Id.

Turning to that record, it is undisputed that Conlon did not appear for his original sentencing hearing. Although he did not personally testify to his absence, the presentence investigation report makes explicit reference to his failure to appear. Conlon did not object to this reference. See Grandberry, 619 N.W.2d at 402 ("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."). As the report contains sufficient evidence to support the "failure to appear" factor, the district court did not act improperly in taking this factor into account.

The report provides:

At the time of the original Presentence Investigation Report, in 1998, the recommendation was that Dennis Conlon be sentence[d] to a term of incarceration in the Iowa Penal System. Conlon failed to report for sentencing and a warrant was therefore issued for his arrest. On September 24, 2004, Conlon was booked into the Buena Vista County Jail after being transported from the State of California. It is obvious by the flight of the defendant, that prison remains the recommendation in this matter.

We affirm Conlon's judgment and sentences for delivery of methamphetamine.

AFFIRMED.


Summaries of

State v. Conlon

Court of Appeals of Iowa
Oct 26, 2005
707 N.W.2d 337 (Iowa Ct. App. 2005)
Case details for

State v. Conlon

Case Details

Full title:STATE OF IOWA, Plaintiff-Appellee, v. DENNIS LEE CONLON…

Court:Court of Appeals of Iowa

Date published: Oct 26, 2005

Citations

707 N.W.2d 337 (Iowa Ct. App. 2005)