STATE v. JONES, 03-0233 (Iowa App. 9-24-2003)

No. 3-564 / 03-0233Court of Appeals of Iowa.
Filed September 24, 2003

Appeal from the Iowa District Court forScott County, Gary D. McKenrick and David E. Schoenthaler, Judges.

Traci Jones appeals her sentence for identity theft. SENTENCE VACATEDAND REMANDED FOR RE-SENTENCING.

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

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William Davis, County Attorney, and Robert Weinberg, Assistant County Attorney, for appellee.

Heard by Sackett, C.J., and Miller and Hecht, JJ.

HECHT, J.

Traci Jones was charged with identity theft and forgery on October 24, 2002. Pursuant to a plea agreement, she pled guilty to identity theft, a class D felony. On January 23, 2003, pursuant to Iowa Code section 902.3A
(Supp. 2001), Jones was sentenced to a determinate sentence of four years and 360 days, as well as an indeterminate term of two years. Section 902.3A[1] provides for the imposition of a determinate term of less than the maximum indeterminate term allowed for a class D felony if “mitigating circumstances exist and those circumstances are stated specifically on the record.” In her appeal, Jones alleges the district court abused its discretion when it sentenced her because the sentence she received is harsher than the sentence she would have received pursuant to section 902.9 and because the district court failed to state any mitigating circumstances on the record.

Because the sentence imposed is within the statutory guidelines, we review for an abuse of discretion. State v. Cooley,587 N.W.2d 752, 754 (Iowa 1998).

Whether or not this sentence is actually harsher than a simple five-year indeterminate sentence, we conclude the district court abused its discretion by failing to state on the record any mitigating circumstances that warranted sentencing under section 902.3A rather than 902.9. When imposing sentence upon Jones, the district court stated,

Giving consideration to the nature of this offense as well as the defendant’s previous criminal history, and the failure at rehabilitative efforts in the past, it does appear that for the protection of the community, incarceration is appropriate to deter this defendant from further criminal activity, at least during the period of incarceration.

No mitigating, only aggravating, circumstances were mentioned.

Because section 902.3A clearly contemplates its use only when mitigating circumstances warrant and are stated on the record, we conclude the district court abused its discretion. We vacate Jones’ sentence and remand to the district court for re-sentencing.

SENTENCE VACATED AND REMANDED FOR RE-SENTENCING.