Opinion
No. 5-920 / 05-0760
Filed January 19, 2006
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Vern Smith appeals from the imposition of consecutive sentences following his conviction for two counts of third degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan M. Horvat, Assistant County Attorney.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Vern Smith appeals from the imposition of consecutive sentences following his conviction for two counts of third degree sexual abuse. We affirm.
I. Background Facts and Proceedings.
On May 24, 2002, Vern Smith entered a plea of guilty to two counts of third degree sexual abuse. Pursuant to the plea agreement, the State was permitted to recommend consecutive sentences to the district court, which it did at the sentencing hearing of May 5, 2005. After receiving the parties' recommendations, the district court declined to grant probation based on its belief that "probation would not provide reasonable protection of the public and maximum opportunity for rehabilitation for the defendant." Instead, the district court sentenced Smith to two consecutive indeterminate ten-year terms of incarceration.
Smith's convictions have been remanded for re-sentencing by the Iowa Supreme Court for sentencing errors on two previous occasions after two consecutive indeterminate ten-year terms of incarceration were imposed.
In ordering consecutive sentences, the district court expressed generally its consideration of the sentencing factors listed in Iowa Code section 907.5 (2001), and specifically noted "the defendant's prior record of convictions, his employment circumstances, his family circumstances, [and] the nature of the offense committed." After reviewing Smith's pre-sentence investigation report [PSI], the district court expressed concern over Smith's extensive criminal history, which includes five operating-a-vehicle-while-intoxicated convictions, and a conviction for the false use of a financial instrument — a class D felony. In addition to the nature of the multiple instances of sexual abuse involved, the district court considered the age difference between Smith, forty-eight at the time the abuse occurred, and his two victims, who were then twelve and fifteen years of age, respectively.
Smith again appeals his sentence, alleging the district court failed to exercise its sentencing discretion by focusing exclusively on the nature of the offense. This sentencing approach, Smith argues, "reveals a fixed policy of consecutive sentences without exercising the court's discretion based upon the specific circumstances of the case and the particular defendant."
II. Scope and Standard of Review.
We review sentencing issues for correction of errors at law. Iowa R. App. P. 6.4. Where, as in this case, a challenged sentence does not fall outside statutory limits, we review the sentence imposed by the district court for abuse of discretion. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). We will reverse the sentence only where the district court's discretion has been exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id. III. Discussion.
The district court must state on the record specific reasons why consecutive sentences are warranted in a particular case. Iowa R. Crim. P. 2.23(3)( d); State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). "Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action" of imposing consecutive sentences. Jacobs, 607 N.W.2d at 690. The reasons, however, are not required to be specifically tied to the imposition of consecutive sentences, but may be found from the reasons expressed for the overall sentencing plan. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). Thus, we look to all parts of the record to find the reasons supporting the sentence imposed. Id.
Iowa Code section 901.5 (2001) requires the district court to impose the sentence, which in the court's judgment, "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 exercising its sentencing discretion, "the district court is to weigh all pertinent matters in determining a proper sentence, including the nature of the offense, the attending circumstances, the defendant's age, character, and propensities or chances for reform." State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).
Here, the district court's sentencing decision was taken after reviewing Smith's PSI, which included information pertaining to each of the factors listed in Loyd. We believe the court's stated reasons for both denying probation and imposing consecutive sentences for the multiple instances of sexual abuse that Smith occasioned upon his two young victims is sufficient to permit our review of the district court's exercise of discretion. Jacobs, 607 N.W.2d at 690. We reject Smith's contention that the district court focused exclusively on Smith's criminal history and the nature of the offenses to which he pled guilty, followed a fixed sentencing policy, and abdicated its sentencing discretion. We instead conclude the district court properly weighed those factors against the information contained in the PSI in striking a balance between community protection and Smith's prospects for successful rehabilitation. Finding no abuse of discretion in the balance struck by the district court, we affirm the imposition of consecutive sentences.