IN THE COURT OF APPEALS OF IOWA
No. 15-0382 Filed December 9, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
ANTOINE DYMETRAE TURNER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Joel W. Barrows
(plea) and Marlita A. Greve (sentencing), Judges.
A defendant appeals his sentence after entering guilty pleas to possession
of marijuana with the intent to deliver and failure to affix a drug tax stamp.
AFFIRMED.
Leah D. Patton, Walcott, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Sheryl A. Soich,
Assistant Attorneys General, for appellee.
Considered by Doyle, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Antoine Dymetrae Turner appeals his sentence after entering guilty pleas
to possession of marijuana with intent to deliver and failure to affix a drug tax
stamp. Turner claims the trial court abused its discretion by relying on an
improper factor in sentencing him and by failing to place him on probation. We
affirm.
I. Background Facts and Proceedings
During the execution of a search warrant, officers found 300 grams of
marijuana belonging to Turner. No Iowa drug tax stamp was affixed to the drugs.
After Turner was charged with possession of marijuana with intent to deliver and
failure to affix a drug tax stamp, the State gave notice of its intent to seek
sentencing enhancements on both charges under Iowa Code section 902 (2013)
and on one charge under Iowa Code section 124.411. The parties reached a
plea agreement. In exchange for Turner’s plea of guilty to both charges, the
State agreed to forgo all sentencing enhancements and recommend concurrent
prison terms at sentencing. The agreement also provided Turner “may request
that the court consider granting probation.” Concurrence of the court was a
condition of the plea agreement. The court accepted Turner’s plea.
At the sentencing hearing, the State recommended concurrent sentences,
stating Turner had received the benefit of all community-based resources for
rehabilitation but had continued to commit drug offenses. Defense counsel
claimed probation was appropriate, noting Turner had obtained his GED during
an earlier incarceration and noting the positive developments in Turner’s life in 3
the past year; Turner had obtained and maintained employment, had received a
substance abuse evaluation, was in the process of starting intensive outpatient
treatment, and had a relationship with his girlfriend and his minor child. During
his right of allocution, Turner told the court:
I just appreciate the opportunity because I see that I was facing quite a bit more time. I then plead out to . . . the five years . . . . And I’m just thankful that I kind of got a second chance from that because I could have been going for a little bit longer than that.
The district court stated its reasons for sentencing Turner to concurrent
five-year prison terms:
THE COURT: Well, Mr. Turner, my job is to look at the least restrictive, going to the worst, and in doing that, I take into account what I read here in the presentence investigation report (PSI) which gives me a very unflattering view of your criminal history. I’m not taking anything into account in your criminal history, unless there’s been an actual disposition. So the items that say in here dismissed or no disposition, I’m totally ignoring those. And in ignoring those, you still have a quite lengthy both juvenile record and adult record, with the vast majority of which is related to marijuana. You have been to prison. You’ve been out of prison. You’ve been to prison. You’ve had work release revoked. You’ve had probation revoked. You continue to use and sell marijuana. You’re telling me now that you're working—you worked maybe twenty hours in this past month. .... . . . In this last year, you haven’t gone and looked for . . . any type of substance abuse evaluation until November or December of last year, you haven’t started any treatment program yet, and you are still using marijuana. So at this point, I think the court has no other choice, based on your criminal record, your sporadic employment history, the continued use of marijuana, the lack of or level of work that you had in the last year and failure to get anything better, and failure to do much about your substance abuse, . . . but to give you a prison sentence. And I hope that the time you’re in prison, you stop smoking marijuana. At some point, you’ve got to stop because you got quite a break. You are right. You got a recommendation from the State of two five-year sentences to run concurrent, and they’re not 4
seeking an habitual offender enhancement or the [section] 124.411 enhancement, which would put you looking at a lot longer time. So I think you’re right, Mr. Turner. You’ve had your second chance, but your second chance includes going to prison and hopefully having enough time that you can get your marijuana usage under control.
Turner timely appealed and seeks resentencing.
II. Scope and Standard of Review
We review a sentence imposed in a criminal case for correction of errors
at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Turner’s sentence
is within the statutory limits. “[T]he decision of the district court to impose a
particular sentence within the statutory limits is cloaked with a strong
presumption in its favor, and will only be overturned for an abuse of discretion or
the consideration of inappropriate matters.” Id. “An abuse of discretion will be
found only when the discretion is exercised on grounds which are clearly
untenable or to an extent clearly unreasonable.” State v. Thomas, 520 N.W.2d
311, 313 (Iowa Ct. App. 1994) (stating the court’s “use of an impermissible
sentencing factor” is an abuse of discretion requiring resentencing).
III. Sentencing Factors
Turner claims the court relied on an improper sentencing factor when it
stated he was receiving “quite a break” due to the State’s agreement not to
pursue the enhancements. Turner fails to specify why the court’s statement was
improper, claiming only: “Essentially, the district court stated that [Turner] had
already received a substantial break with regard to the enhancements so he was
not going to get another break with probation. This sentencing consideration was
improper.” Turner cites no authority for this conclusory proposition, and we are 5
not persuaded. The court’s mention of the State’s agreement to decline to
pursue sentencing enhancements shows its recognition of Turner’s criminal
history, i.e., the criminal history making those enhancements possible. Because
Turner’s criminal history is a sentencing factor the court was required to consider,
the court did not abuse its discretion. See Iowa Code § 907.5(1)(2) (requiring the
court, before suspending a sentence, to consider the “defendant’s prior record of
convictions and prior record of deferments of judgment”).
Additionally, when the court stated, “[Y]ou got quite a break. You are
right . . . ,” the court was parroting Turner’s earlier comments: “I kind of got a
second chance.” In making this comment, the court was considering only
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IN THE COURT OF APPEALS OF IOWA
No. 15-0382 Filed December 9, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
ANTOINE DYMETRAE TURNER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Joel W. Barrows
(plea) and Marlita A. Greve (sentencing), Judges.
A defendant appeals his sentence after entering guilty pleas to possession
of marijuana with the intent to deliver and failure to affix a drug tax stamp.
AFFIRMED.
Leah D. Patton, Walcott, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Sheryl A. Soich,
Assistant Attorneys General, for appellee.
Considered by Doyle, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Antoine Dymetrae Turner appeals his sentence after entering guilty pleas
to possession of marijuana with intent to deliver and failure to affix a drug tax
stamp. Turner claims the trial court abused its discretion by relying on an
improper factor in sentencing him and by failing to place him on probation. We
affirm.
I. Background Facts and Proceedings
During the execution of a search warrant, officers found 300 grams of
marijuana belonging to Turner. No Iowa drug tax stamp was affixed to the drugs.
After Turner was charged with possession of marijuana with intent to deliver and
failure to affix a drug tax stamp, the State gave notice of its intent to seek
sentencing enhancements on both charges under Iowa Code section 902 (2013)
and on one charge under Iowa Code section 124.411. The parties reached a
plea agreement. In exchange for Turner’s plea of guilty to both charges, the
State agreed to forgo all sentencing enhancements and recommend concurrent
prison terms at sentencing. The agreement also provided Turner “may request
that the court consider granting probation.” Concurrence of the court was a
condition of the plea agreement. The court accepted Turner’s plea.
At the sentencing hearing, the State recommended concurrent sentences,
stating Turner had received the benefit of all community-based resources for
rehabilitation but had continued to commit drug offenses. Defense counsel
claimed probation was appropriate, noting Turner had obtained his GED during
an earlier incarceration and noting the positive developments in Turner’s life in 3
the past year; Turner had obtained and maintained employment, had received a
substance abuse evaluation, was in the process of starting intensive outpatient
treatment, and had a relationship with his girlfriend and his minor child. During
his right of allocution, Turner told the court:
I just appreciate the opportunity because I see that I was facing quite a bit more time. I then plead out to . . . the five years . . . . And I’m just thankful that I kind of got a second chance from that because I could have been going for a little bit longer than that.
The district court stated its reasons for sentencing Turner to concurrent
five-year prison terms:
THE COURT: Well, Mr. Turner, my job is to look at the least restrictive, going to the worst, and in doing that, I take into account what I read here in the presentence investigation report (PSI) which gives me a very unflattering view of your criminal history. I’m not taking anything into account in your criminal history, unless there’s been an actual disposition. So the items that say in here dismissed or no disposition, I’m totally ignoring those. And in ignoring those, you still have a quite lengthy both juvenile record and adult record, with the vast majority of which is related to marijuana. You have been to prison. You’ve been out of prison. You’ve been to prison. You’ve had work release revoked. You’ve had probation revoked. You continue to use and sell marijuana. You’re telling me now that you're working—you worked maybe twenty hours in this past month. .... . . . In this last year, you haven’t gone and looked for . . . any type of substance abuse evaluation until November or December of last year, you haven’t started any treatment program yet, and you are still using marijuana. So at this point, I think the court has no other choice, based on your criminal record, your sporadic employment history, the continued use of marijuana, the lack of or level of work that you had in the last year and failure to get anything better, and failure to do much about your substance abuse, . . . but to give you a prison sentence. And I hope that the time you’re in prison, you stop smoking marijuana. At some point, you’ve got to stop because you got quite a break. You are right. You got a recommendation from the State of two five-year sentences to run concurrent, and they’re not 4
seeking an habitual offender enhancement or the [section] 124.411 enhancement, which would put you looking at a lot longer time. So I think you’re right, Mr. Turner. You’ve had your second chance, but your second chance includes going to prison and hopefully having enough time that you can get your marijuana usage under control.
Turner timely appealed and seeks resentencing.
II. Scope and Standard of Review
We review a sentence imposed in a criminal case for correction of errors
at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Turner’s sentence
is within the statutory limits. “[T]he decision of the district court to impose a
particular sentence within the statutory limits is cloaked with a strong
presumption in its favor, and will only be overturned for an abuse of discretion or
the consideration of inappropriate matters.” Id. “An abuse of discretion will be
found only when the discretion is exercised on grounds which are clearly
untenable or to an extent clearly unreasonable.” State v. Thomas, 520 N.W.2d
311, 313 (Iowa Ct. App. 1994) (stating the court’s “use of an impermissible
sentencing factor” is an abuse of discretion requiring resentencing).
III. Sentencing Factors
Turner claims the court relied on an improper sentencing factor when it
stated he was receiving “quite a break” due to the State’s agreement not to
pursue the enhancements. Turner fails to specify why the court’s statement was
improper, claiming only: “Essentially, the district court stated that [Turner] had
already received a substantial break with regard to the enhancements so he was
not going to get another break with probation. This sentencing consideration was
improper.” Turner cites no authority for this conclusory proposition, and we are 5
not persuaded. The court’s mention of the State’s agreement to decline to
pursue sentencing enhancements shows its recognition of Turner’s criminal
history, i.e., the criminal history making those enhancements possible. Because
Turner’s criminal history is a sentencing factor the court was required to consider,
the court did not abuse its discretion. See Iowa Code § 907.5(1)(2) (requiring the
court, before suspending a sentence, to consider the “defendant’s prior record of
convictions and prior record of deferments of judgment”).
Additionally, when the court stated, “[Y]ou got quite a break. You are
right . . . ,” the court was parroting Turner’s earlier comments: “I kind of got a
second chance.” In making this comment, the court was considering only
Turner’s earlier prosecuted offenses and good fortune as it discussed the
leniency the State was currently demonstrating by not pursuing possible
enhancements, a fact that Turner himself specifically stated. Accordingly, the
court’s comment was not improper, and the court did not consider impermissible
sentencing factors.
IV. Court’s Failure to Order Probation
Turner claims the court abused its discretion in failing to grant his request
for probation. He contends the court “did not fully and properly consider and
credit” his “positive life changes” while giving “too much weight to [his] criminal
history and his marijuana [use].” Turner also claims, if the court believed he had
an issue with drug addiction, “granting probation with the condition that he
complete treatment, not ordering prison, would have better addressed this
problem.” 6
During the sentencing hearing, Turner admitted he was currently addicted
to marijuana and had smoked marijuana the weekend prior to the sentencing
hearing. Our de novo review of the record shows Turner has demonstrated an
unwillingness to abide by the law in the past and is presently unable to refrain
from using drugs. The PSI reveals Turner had already been on probation and
parole, as well as placed in other residential correctional programs, without
success. In recommending a sentence of incarceration, the PSI noted the State
had exhausted all community-based treatment resources. In light of Turner’s
failure to avail him of previous lenient sanctions and his continued violation of the
law, the court did not abuse its discretion in weighing the appropriate factors and
placing greater weight on Turner’s poor chance of reform while on probation.
See State v. Hopkins, 860 N.W.2d 550, 555 (Iowa 2015) (“[A] court makes each
sentencing decision on an individual basis and seeks to fit the particular person
affected.”); State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983) (holding “right of
an individual judge to balance the relevant factors in determining an appropriate
sentence inheres in the discretionary standard”).