No. 5-500 / 04-2020Court of Appeals of Iowa.
Filed July 27, 2005
Appeal from the Iowa District Court for Polk County, Richard Blane II, Judge.
The defendant alleges the district court erred in sentencing him to a five-year term of imprisonment. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Bob DiBlasi, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Miller, JJ.
MAHAN, P.J.
The defendant alleges the district court erred in sentencing him to a five-year term of imprisonment. We affirm.
Harley Snider received a deferred judgment in 2001 on a charge of reckless use of fire or explosives, a serious misdemeanor in violation of Iowa Code section 712.5 (2001). While on probation, he was convicted on a charge of manufacturing a controlled substance, a class C felony, in violation of Iowa Code section 124.401(1)(c). He received a ten-year suspended sentence on July 7, 2002. His deferred judgment was not revoked. He was arrested again in May of 2003 on the charges of possession of a controlled substance, a serious misdemeanor, in violation of Iowa Code section 124.401(5) (2003), and operating while intoxicated, a serious misdemeanor, in violation of Iowa Code section 321J.2. The possession charge was dismissed, and he received yet another deferred judgment on the OWI charge.
On May 25, 2004, Snider was arrested once again. He was charged with possession of a controlled substance with intent to deliver, second or subsequent offense, a class D felony in violation of Iowa Code sections 124.401(1)(d) and 124.411 (Count I) and failure to possess a tax stamp, a class D felony in violation of Iowa Code sections 453B.3 and 453B.12 (Count II). He was additionally charged with a simple misdemeanor. At the time of his arrest, Snider was carrying a quarter pound of marijuana.
A plea agreement was reached whereby Snider pled guilty to Count I without the enhancement while Count II and the simple misdemeanor were dismissed. On December 8, 2004, a combined sentencing and probation revocation hearing were held. Snider’s probation was revoked on the 2002 manufacturing charge, and he was sentenced to a term of imprisonment not to exceed ten years with a mandatory minimum of one-third. The record indicated that in addition to the new charges he had failed to contact his probation officer for a period in excess of ninety days.
In addition, Snider was sentenced on Count I without the enhancement. He was ordered to serve a term of incarceration not to exceed five years, and the sentence was ordered to run consecutive to the ten-year term. Snider appeals, challenging only the five-year consecutive term.
Snider’s lone contention on appeal is that the district court abused its discretion in sentencing him to prison.[1] He argues the district court could have chosen among several sentencing options, including a suspended sentence. He argues that he is being a constructive member of society and wants treatment on the “outside” in order to support his family. He claims he has a true desire to turn his life around. It’s a little late. The district court said it well:
Mr. Snider, as indicated I have reviewed your Presentence Investigation, and in 16311 you are currently on probation for a ten-year felony. You were told at that time that you were subject to being revoked if you committed anymore offenses or if you violated your probation. Then on May 6th of 2003 in Jasper County you were arrested for possession of a controlled substance and an OWI. The possession was dismissed and you were granted a deferred judgment which was the second deferred you received because you had Reckless Use of Fire or Explosives back in September of 2005 (sic) and received a deferred judgment on July 17, of 2001.
. . . .
Pardon me, July 17, 2001. Pardon me. And that was a deferred judgment, two years probation. So you were on probation when you committed the drug offense and got sentenced. Then you were on probation and you got the OWI, and now you got this five-year felony that you pled guilty to. It is just incomprehensible to me that you can go along and keep getting deferreds or probations and why these weren’t revoked in the first place I have no idea. But for you to continue to be out and continue to violate the law, let alone probation, is absolutely ridiculous. And how you have bumbled along without having any accountability for your conduct and the violation is incomprehensible to me, and the buck stops here. . . .
Our review of the record indicates the district court did not abuse its discretion in sentencing Snider to a term of imprisonment. State v. Grandberry, 619 N.W.2d 399-401 (Iowa 2000).
AFFIRMED.