State of Iowa v. Gay Do Htoo

• Court: Court of Appeals of Iowa
• Decided: October 19, 2022
• Docket: 22-0154
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0154 Filed October 19, 2022

STATE OF IOWA, Plaintiff-Appellee,

vs.

GAY DO HTOO, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

Gay Do Htoo appeals from the sentences imposed following his guilty pleas

to third-degree burglary in two separate cases. AFFIRMED.

Eric W. Manning of Manning Law Office, P.L.L.C., Urbandale, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ. 2

VAITHESWARAN, Presiding Judge.

Gay Do Htoo pled guilty to third-degree burglary in two separate cases. He

was on probation for another crime at the time. In a combined sentencing hearing,

the district court ordered his probation revoked for the prior crime and sentenced

him to two prison terms not exceeding five years, to be served consecutively.

On appeal, Htoo argues the court abused its discretion in declining to grant

him “probation with placement at Fort Des Moines,” “additional time in jail,” or

concurrent rather than consecutive sentences.1 See State v. Davison, 973 N.W.2d

276, 280 (Iowa 2022) (setting forth standard of review). He also asserts the

sentence amounted to cruel and unusual punishment under the Eighth

Amendment to the United States Constitution. See State v. Sweet, 879

N.W.2d 811, 816 (Iowa 2016) (reviewing constitutional challenge de novo).

The State responds that Htoo only filed a notice of appeal in one of the

cases, depriving us of jurisdiction to consider the second case. We disagree.

Although Htoo failed to cite both case numbers in the caption of his notice of

appeal, he appealed “from the final order entered in this case . . . and from all

adverse rulings and orders inhering therein.” The district court filed a single

sentencing order covering both cases. Under these circumstances, Htoo’s notice

of appeal sufficed to confer appellate jurisdiction over both sentences.

Turning to the merits, we begin with the district court’s reasons for the

sentences. The court stated probation was not a viable option, given Htoo’s prior

1Notwithstanding recent legislation that limits the right of appeal from a guilty plea, a defendant has good cause to appeal a sentence. See State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020). 3

failure on probation. Specifically, the court noted that Htoo “absconded within

three months after being placed on probation,” “didn’t have much communication

with his probation officer,” and “continued to commit offenses.” The court also

considered Htoo’s age, “the nature of the circumstances of the offenses,” and “his

connections to the community.” In ordering prison time and consecutive

sentences, the court cited its obligation to “not only consider the rehabilitation of

the defendant but” also “the protection of the public from further criminal activity.”

We discern no abuse of discretion in the court’s sentencing decision.2

We turn to Htoo’s cruel-and-unusual-punishment claim. He focuses on the

“harshness of the penalty” relative to the “gravity of the offense.” His argument

implicates a “gross disproportionality” claim based on the individual circumstances

of the case. See Sandoval v. State, 975 N.W.2d 434, 438 (Iowa 2022); State v.

Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (stating the threshold inquiry is whether

the sentence “leads to an inference of gross disproportionality to [the defendant’s]

crime”). The supreme court has stated “we owe substantial deference to the

penalties the legislature has established for various crimes” and “it is rare that a

sentence will be so grossly disproportionate to the crime as to satisfy the threshold

inquiry.” Oliver, 812 N.W.2d at 650. That is particularly true if the defendant is “a

recidivist offender,” though “unique features of a case can ‘converge to generate

2 Htoo quotes State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976) for the proposition that a court “may pronounce separate and distinct sentences which are cumulative, and are to run consecutively.” He then suggests “[t]his court should reconsider the primacy of Criswell and overturn the precedent.” We are not at liberty to overrule supreme court precedent. See Bomgaars v. State, 967 N.W.2d 41, 48 n.4 (Iowa 2021) (“This court is not at liberty to anticipatorily overrule Supreme Court precedent any more than lower courts in Iowa are at liberty to anticipatorily overrule this court’s precedent.”). 4

a high risk of potential gross disproportionality.’” Id. at 651 (quoting State v.

Bruegger, 773 N.W.2d 862, 884 (Iowa 2009)).

Htoo argues “he was not given the chance to succeed under a more strictly

supervised level of probation.” But, as the district court underscored, probation did

not work for Htoo; he committed two crimes shortly after it was granted in the prior

case. Htoo’s recidivism together with the absence of unique circumstances lead

us to find no inference of gross disproportionality. See State v. Cabrera,

No. 19-2060, 2021 WL 375121, at *3 (Iowa Ct. App. Feb. 3, 2021) (finding no

inference of gross disproportionality where the district court appropriately weighed

the gravity of the offense against the severity of the sentence).

“If the sentence does not create an inference of gross disproportionality,

then ‘no further analysis is necessary.’” Oliver, 812 N.W.2d at 650 (citation

omitted). Additionally, Htoo acknowledges he “does not have the available data

for the second and third parts of the [gross-disproportionality] test.” We conclude

Htoo’s sentences did not violate the Eighth Amendment to the United States

Constitution. We affirm the imposition of those sentences as well as the decision

to impose them consecutively.

AFFIRMED.