Opinion
No. 5-665 / 04-2017
Filed October 12, 2005
Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.
Craig Stephen Morrison appeals his sentence of ten years imprisonment following his guilty plea to homicide by vehicle. AFFIRMED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Geoffrey E. Roughton, Legal Intern, William Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Craig Stephen Morrison appeals his sentence of ten years imprisonment following his guilty plea to homicide by vehicle. He claims the trial court abused its discretion by imposing a prison term based upon only one factor and that the court should have employed a presumption of probation. We affirm.
The evening of April 9, 2004, began like any other evening when friends and mutual acquaintances decide to go out for a night on the town. Unfortunately, however, it would not end so typically. The defendant, Craig Morrison, was home on leave from the Navy visiting his native Quad Cities before reporting to the posting he had received in Washington State. Morrison visited a friend at the friend's apartment in Davenport. There he met Donald Anderson for the first time. Morrison decided to accompany his friend, three other companions, and Anderson for an evening out. After visiting several bars, Morrison decided to drive back to his friend's apartment with Anderson as a passenger. At approximately 12:18 a.m. on April 10 Morrison drove off Grand Avenue, through an open field, and struck a parked construction crane at a speed of at least forty-six miles per hour. The accident caused the death of Anderson. A blood sample taken over two hours after the accident showed Morrison had an alcohol concentration of .182.
On June 21, 2004, the State charged Morrison, by trial information, with two counts of homicide by vehicle. Count I was for causing the death of another by operating a motor vehicle while intoxicated, in violation of Iowa Code section 707.6A(1) (2003), a class "B" felony. Count II was for causing the death of another by reckless driving in violation of section 707.6A(2), a class "C" felony. Pursuant to the terms of a written plea agreement Morrison agreed to enter a plea of guilty to Count II and the State agreed to dismiss Count I and make no recommendation concerning Morrison's sentence. The plea agreement was conditioned upon the concurrence of the court. The court accepted Morrison's guilty plea and the plea agreement and later sentenced him to an indeterminate term of no more than ten years imprisonment.
Morrison appeals his sentence, claiming the sentencing judge's decision to impose a prison term was an abuse of discretion because it was based upon only one essential factor and the decision was therefore an imposition of the judge's personal policy. He further contends the court should have employed a presumption of probation.
Our review of sentencing decisions is for correction of errors at law. Iowa R. App. P. 6.4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). We review for an abuse of discretion or for defects in the sentencing procedure. State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995). A sentence will not be upset on appeal unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
Sentencing decisions of the district court are cloaked with a strong presumption in their favor. Where, as here, a defendant does not assert that the imposed sentence is outside the statutory limits, the sentence will be set aside only for an abuse of discretion. An abuse of discretion is found only when the sentencing court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.
Thomas, 547 N.W.2d at 225 (citations omitted).
When a sentence is not mandatory, the district court must exercise its discretion in determining what sentence to impose. The district court must demonstrate its exercise of discretion by stating upon the record the reasons for the particular sentence imposed. The sentencing court, however, is generally not required to give its reasons for rejecting particular sentencing options.
Id. (citations omitted).
Iowa Rule of Criminal Procedure 2.23(3)( d) requires a sentencing court to "state on the record its reason for selecting the particular sentence." Failure to state on the record the reasons for the sentence imposed requires the sentence be vacated and the case remanded for amplification of the record and resentencing. State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980); State v. Freeman, 404 N.W.2d 188, 191 (Iowa Ct.App. 1987). 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; State v. Hildebrand, 280 N.W.2d 393, 395 (Iowa 1979).
As set forth above, Morrison argues the court abused its discretion in imposing a prison term because it based its determination on only one sentencing factor. More specifically, he contends the sentencing judge denied his request for a deferred judgment and for probation, and instead imposed a prison term, based only on the nature of the offense to which Morrison had pled guilty.
Considering only the nature of the offense constitutes an abuse of discretion. See State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982). However, as the sentencing court made clear on the record, it had received, examined, and considered the presentence investigation report, a separate "sentencing report" submitted by Morrison, an "additional typed statement" by Morrison, and a letter from the victim's former wife. From these documents, in particular the presentence investigation report, the court was aware of and considered the circumstances surrounding the crime; Morrison's age, twenty-four years; Morrison's record of four convictions for speeding, a conviction for underage use of tobacco, and a conviction for underage possession of alcohol; the fact Morrison had never been married but had two minor children, and was substantially in arrears in his two child support obligations; and the fact Morrison was enlisted in the U.S. Navy. The court also heard and considered the testimony of witnesses, a statement by Morrison, and the statements made by Morrison's attorney.
Further, in setting forth reasons for the sentence imposed here the court stated the following:
In sentencing, the Court has many considerations, one of which is the seriousness of this crime, or quite frankly any crime the Court must determine how serious the nature is, and it's important that you understand that this crime by its very nature is extremely serious. It has dramatic consequences for not only you, but for the victim in this case, the victim's family, and for members of the community. The conduct by its very nature makes members of this community interested. And that leads to the second consideration, and that's that this Court must consider whether or not your conduct poses a threat to members of this community. The Court must also look at what is available in terms of services and what a proper rehabilitative plan might be. And in doing so, the Court also has to consider what affect the plea might have in deterring this type of conduct. And as you might — have already concluded that this requires, quite frankly, a balancing of all the interests in this case to determine what the appropriate sentence should be.
This statement made by the court shows it not only properly considered the serious nature of the offense, an appropriate factor, see id. (stating the nature of the offense is a necessary factor to consider when exercising sentencing discretion), but also considered other appropriate factors such as the impact of the crime on the victim and others. In addition the court expressly considered such things as Morrison's need for and prospects for rehabilitation and what a proper rehabilitative plan might be, protection of the community, and deterrence. These are proper matters for consideration when weighing sentencing options. See Iowa Code §§ 901.5, 907.5.
Based on the record before us we conclude that, contrary to Morrison's claim of error, the district court did not base its sentencing decision solely on the nature of the offense, but rather considered and weighed numerous, appropriate factors in reaching its sentencing decision.
Finally, we address briefly Morrison's argument that when the Iowa Code does not mandate imprisonment trial courts should employ a presumption in favor of probation to allow the defendant to be rehabilitated in the community. The only authority Morrison cites for this contention is Iowa Code section 901B.1 which requires each judicial district to implement an intermediate criminal sanctions program, and adopt a related plan designed to reduce probation revocations to prison. The statue sets forth a continuum of correctional alternatives to be used in dealing with probation violators, with jail and prison sentences being the last resort. Also, under this section reasons must be given when an individual is transferred between continuum levels. See Iowa Code § 901B.1(3).
Morrison argues that based on this statue the legislature has determined most offenders can be rehabilitated in the community, rehabilitation is the surest and preferred method of protecting the community from additional offenses, and jail and prison sentences should be a last resort. We believe Morrison reads more into this statue than was intended by the legislature.
First and foremost, this statute applies only to those persons already granted and on probation, not to those who have not yet been sentenced. Second, we believe that establishing a preference for, or presumption in favor of, probation involves a matter of public policy more appropriately decided by the legislature than by the courts. Our role is simply "to give effect to the law as written." State v. Wagner, 596 N.W.2d 83, 88 (Iowa 1999). If the legislature had intended to reduce jail and prison incarceration by requiring judges to employ a presumption of probation in sentencing it would have done so expressly. It has not. The Code does allow judges to impose sentences in their discretion, including exercising options such as probation. See Iowa Code §§ 901.5, 907.3. However, the legislature has not required courts to employ a presumption of probation. We will not substitute our judgment for that of the legislature on this policy issue.
Based on our review of the entire record, and for all of the reasons set forth above, we conclude the sentencing judge did not base his sentencing decision on only one factor and thus did not abuse his sentencing discretion as claimed. Further, the court was not required to employ a presumption in favor of probation and did not err by not doing so.