Opinion
No. 2-637 / 02-0236
Filed September 11, 2002
Appeal from the Iowa District Court for Story County, Thomas R. Hronek, Judge.
Defendant appeals from the sentence entered by the district court following his guilty plea to third offense operating while intoxicated (OWI) in violation of Iowa Code section 321J.2 (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Stephen Holmes, County Attorney, and Rod Reynolds, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Gregory Joe Terrones, Jr. appeals from the sentence entered by the district court following his guilty plea to third offense operating while intoxicated (OWI) in violation of Iowa Code section 321J.2 (2001). He contends the court abused its discretion in sentencing him to a term of no more than five years imprisonment because the court failed to give adequate consideration to his character and chances for reform. We affirm.
Terrones does not challenge a $2,500 fine, surcharges, attorney fees, and costs imposed by the district court.
Our review of sentencing decisions is for correction of errors at law. Iowa R. App. P. 6.4. 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 the 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.
State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996) (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).
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) (quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)). These are some of the "minimal essential factors" to be considered when exercising sentencing discretion. 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. "The nature of the offense alone cannot be determinative of a discretionary sentence." State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982).
Terrones argues the court failed to give adequate consideration to his character and chances for reform. Specifically, he contends the court did not adequately consider the fact he had admitted to being an alcoholic, was sober, was attending substance abuse meetings/classes, was not driving, and had a full-time job. However, we find the record clearly demonstrates that the sentencing court did in fact take these matters, as well as other pertinent factors, into consideration in determining Terrones's sentence.
Initially the court noted Terrones's age, education, family status, employment status, and prior convictions. The court also explicitly considered the fact Terrones had started substance abuse treatment, was doing well in treatment, and had made some changes in his life, all of which the court considered as "positive" things. However, the court also noted that Terrones had only been participating in the substance abuse program for one month and he had only attended approximately six 12-step meetings since his arrest in August of 2001, nearly six months prior to sentencing.
Furthermore, the court took into account the fact Terrones had been granted probation after his second OWI conviction but had violated that probation by committing the offense of lascivious acts with a child and had been incarcerated for that offense. It considered the fact his probation on the OWI offense was thereafter revoked and he was ordered to serve the OWI and lascivious acts sentences consecutively. The court noted Torrones was released from prison in May of 2000 and only shortly over a year after release he was again arrested for driving while intoxicated.
Although the court expressly considered the possibility of probation and the fact Terrones was "sincere" in wanting to be successful on probation, based on his past performances the court found "unfortunately, that sincerity alone cannot be expected to assure protection to the community from further offenses by Mr. Terrones and others who are similarly situated." In addition, the court considered the seriousness of the crime as well as the pre-sentence investigation report's recommendation for incarceration.
Based on all of the factors considered by the district court set forth above, we find the court did not abuse its sentencing discretion in ordering Terrones incarcerated for a term of not more than five years. The court considered all of the pertinent and proper factors in making its sentencing determination, including Terrones's character and chances of reform. Terrones's sentence is affirmed.
AFFIRMED.