IN THE COURT OF APPEALS OF IOWA
No. 23-0493 Filed January 10, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
JABRI MALIK GUY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brendan Greiner,
District Associate Judge.
The defendant appeals his sentence for operating while intoxicated, second
offense. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Olivia D. Brooks, Assistant Attorney
General, for appellee.
Considered by Greer, P.J., and Ahlers and Buller, JJ. 2
GREER, Presiding Judge.
Jabri Guy challenges the sentence imposed following his January 2023
written guilty plea to operating while intoxicated (OWI), second offense, an
aggravated misdemeanor, in violation of Iowa Code § 321J.2 (2022). At the top of
his list of concerns, Guy found the sentence to be too harsh given the factors he
believes the court should have considered and discounting the factors he claims
the court should not have given weight. To that point, Guy maintains the court
failed to properly consider that his substance-abuse evaluation recommended no
treatment, gave his criminal history of other OWI convictions too much weight, and
gave too little weight to the other risk assessments. Based on the parameters of
our review, we affirm the sentence.
After Guy pled guilty by a written plea agreement, the sentencing court held
a sentencing hearing in March 2023. The State recommended a two-year term of
imprisonment; Guy requested suspension of all but the minimum jail sentence of
seven days with supervised probation, which aligned with the recommendation in
the presentence investigation (PSI) report. Guy admitted that “he has a limited
criminal history, the two OWI’s prior to this one being the main two.” The State
pointed out that the conviction Guy was being sentenced on was “a lifetime third
pled down to a second. His last two OWI’s were both very recent in 2021.” The
PSI report listed both previous OWI convictions.1 The sentencing court imposed
a term of imprisonment not to exceed two years and stated that it did so because
1 Guy was twice previously convicted of OWI, first offense: in case OWCR235961
in June 2020 and again in case OWCR236783 in January 2021. The conviction underlying the sentence at issue in this appeal, case OMOM092410, is Guy’s lifetime third conviction for OWI. 3
it had doubts about the substance-abuse evaluation and it considered that “this is
a third [OWI] case, and [it had] serious concerns for the protection of the
community.” In its view, the sentencing court added that it did not “believe that
[Guy] is ready to change [his] behavior, in part because this is the third OWI in two
years, and [it doesn’t] see a recommendation for treatment.” As for other factors,
on the sentencing order, the court also marked these sentencing consideration
factors: the nature and circumstances of the crime, protection of the public from
further offenses, Guy’s criminal and substance abuse history, and the maximum
opportunity for rehabilitation. Guy appeals.
Although Guy pled guilty, because he is challenging the sentence imposed
and not the guilty plea, he has good cause for appeal. See Iowa Code
§ 814.6(1)(a)(3) (granting the right of appeal “where the defendant establishes
good cause”); State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020) (“We hold that
good cause exists to appeal from a conviction following a guilty plea when the
defendant challenges his or her sentence rather than the guilty plea.”). We reverse
a sentence within the statutory limits—like here—only if the sentencing court
abused its discretion or there was some defect in the sentencing procedure.
Damme, 944 N.W.2d at 103. An abuse of discretion occurs when “the district court
exercises its discretion on grounds or for reasons that were clearly untenable or
unreasonable.” State v. Gordon, 921 N.W.2d 19, 24 (Iowa 2018). A ground or
reason is untenable if it is based on an erroneous application of law. See Willard
v. State, 893 N.W.2d 52, 58 (Iowa 2017). “[M]ere disagreement with the sentence
imposed, without more, is insufficient to establish an abuse of discretion.” State v.
Pena, No. 15-0988, 2016 WL 1133807, at *1 (Iowa Ct. App. Mar. 23, 2016). 4
Guy contends that the sentencing court erred in imposing a term of two
years of imprisonment rather than suspending all of it but for the minimum seven-
day sentence and authorizing supervised probation as the PSI evaluator
recommended. However, “[a] sentencing court’s decision to impose a specific
sentence that falls within the statutory limits is cloaked with a strong presumption
in its favor . . . .” State v. Wilbourn, 974 N.W.2d 58, 65 (Iowa 2022) (citation
omitted). And section 321J.2(4) authorizes a sentencing court to punish a
conviction for OWI, second offense through the imposition of “a minimum period
of imprisonment in the county jail or community-based correctional facility of seven
days but not to exceed two years.” While this sentence may seem unduly harsh,
“our task on appeal is not to second guess the decision made by the district court,
but to determine if it was unreasonable or based on untenable grounds.” State v.
Formaro, 638 N.W.2d 720, 725 (Iowa 2002). Likewise, “The test for whether a
sentencing court abused its discretion is not whether we might have weighed the
various factors differently.” State v. Gordon, ___ N.W.2d ___, ___, 2023 WL
8655919, at *3 (Iowa 2023).
Guy raises several claimed unreasonable grounds he believes the court
utilized in forming his sentence. First, Guy takes issue with the court’s opinion that
he was not ready to change his behavior and emphasizes that the October 2022
substance-abuse evaluation did not recommend treatment and the PSI report
recommended the minimum sentence for OWI, second offense. Yet, the
sentencing court must merely “consider the substance abuse evaluation in
sentencing a second or subsequent OWI offender with an eye toward treatment
recommended as a result of the required evaluation.” State v. Ludley, 465 5
N.W.2d 912, 913 (Iowa Ct. App. 1990). Second, a PSI sentencing
recommendation does not bind the sentencing court but is simply “a factor that can
influence the sentencing decision.” State v. Hopkins, 860 N.W.2d 550, 557 (Iowa
2015); accord State v. Fesko, No. 13-1736, 2014 WL 2885336, at *3 (Iowa Ct. App.
June 25, 2014) (finding no abuse of discretion when the sentencing court declined
to follow the PSI’s sentencing recommendation).
True, prior to pleading guilty, Guy completed the court-ordered substance-
abuse evaluation and it did not recommend any treatment. But we find that
evaluation report does not offer much assurance that Guy has turned the corner
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IN THE COURT OF APPEALS OF IOWA
No. 23-0493 Filed January 10, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
JABRI MALIK GUY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brendan Greiner,
District Associate Judge.
The defendant appeals his sentence for operating while intoxicated, second
offense. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Olivia D. Brooks, Assistant Attorney
General, for appellee.
Considered by Greer, P.J., and Ahlers and Buller, JJ. 2
GREER, Presiding Judge.
Jabri Guy challenges the sentence imposed following his January 2023
written guilty plea to operating while intoxicated (OWI), second offense, an
aggravated misdemeanor, in violation of Iowa Code § 321J.2 (2022). At the top of
his list of concerns, Guy found the sentence to be too harsh given the factors he
believes the court should have considered and discounting the factors he claims
the court should not have given weight. To that point, Guy maintains the court
failed to properly consider that his substance-abuse evaluation recommended no
treatment, gave his criminal history of other OWI convictions too much weight, and
gave too little weight to the other risk assessments. Based on the parameters of
our review, we affirm the sentence.
After Guy pled guilty by a written plea agreement, the sentencing court held
a sentencing hearing in March 2023. The State recommended a two-year term of
imprisonment; Guy requested suspension of all but the minimum jail sentence of
seven days with supervised probation, which aligned with the recommendation in
the presentence investigation (PSI) report. Guy admitted that “he has a limited
criminal history, the two OWI’s prior to this one being the main two.” The State
pointed out that the conviction Guy was being sentenced on was “a lifetime third
pled down to a second. His last two OWI’s were both very recent in 2021.” The
PSI report listed both previous OWI convictions.1 The sentencing court imposed
a term of imprisonment not to exceed two years and stated that it did so because
1 Guy was twice previously convicted of OWI, first offense: in case OWCR235961
in June 2020 and again in case OWCR236783 in January 2021. The conviction underlying the sentence at issue in this appeal, case OMOM092410, is Guy’s lifetime third conviction for OWI. 3
it had doubts about the substance-abuse evaluation and it considered that “this is
a third [OWI] case, and [it had] serious concerns for the protection of the
community.” In its view, the sentencing court added that it did not “believe that
[Guy] is ready to change [his] behavior, in part because this is the third OWI in two
years, and [it doesn’t] see a recommendation for treatment.” As for other factors,
on the sentencing order, the court also marked these sentencing consideration
factors: the nature and circumstances of the crime, protection of the public from
further offenses, Guy’s criminal and substance abuse history, and the maximum
opportunity for rehabilitation. Guy appeals.
Although Guy pled guilty, because he is challenging the sentence imposed
and not the guilty plea, he has good cause for appeal. See Iowa Code
§ 814.6(1)(a)(3) (granting the right of appeal “where the defendant establishes
good cause”); State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020) (“We hold that
good cause exists to appeal from a conviction following a guilty plea when the
defendant challenges his or her sentence rather than the guilty plea.”). We reverse
a sentence within the statutory limits—like here—only if the sentencing court
abused its discretion or there was some defect in the sentencing procedure.
Damme, 944 N.W.2d at 103. An abuse of discretion occurs when “the district court
exercises its discretion on grounds or for reasons that were clearly untenable or
unreasonable.” State v. Gordon, 921 N.W.2d 19, 24 (Iowa 2018). A ground or
reason is untenable if it is based on an erroneous application of law. See Willard
v. State, 893 N.W.2d 52, 58 (Iowa 2017). “[M]ere disagreement with the sentence
imposed, without more, is insufficient to establish an abuse of discretion.” State v.
Pena, No. 15-0988, 2016 WL 1133807, at *1 (Iowa Ct. App. Mar. 23, 2016). 4
Guy contends that the sentencing court erred in imposing a term of two
years of imprisonment rather than suspending all of it but for the minimum seven-
day sentence and authorizing supervised probation as the PSI evaluator
recommended. However, “[a] sentencing court’s decision to impose a specific
sentence that falls within the statutory limits is cloaked with a strong presumption
in its favor . . . .” State v. Wilbourn, 974 N.W.2d 58, 65 (Iowa 2022) (citation
omitted). And section 321J.2(4) authorizes a sentencing court to punish a
conviction for OWI, second offense through the imposition of “a minimum period
of imprisonment in the county jail or community-based correctional facility of seven
days but not to exceed two years.” While this sentence may seem unduly harsh,
“our task on appeal is not to second guess the decision made by the district court,
but to determine if it was unreasonable or based on untenable grounds.” State v.
Formaro, 638 N.W.2d 720, 725 (Iowa 2002). Likewise, “The test for whether a
sentencing court abused its discretion is not whether we might have weighed the
various factors differently.” State v. Gordon, ___ N.W.2d ___, ___, 2023 WL
8655919, at *3 (Iowa 2023).
Guy raises several claimed unreasonable grounds he believes the court
utilized in forming his sentence. First, Guy takes issue with the court’s opinion that
he was not ready to change his behavior and emphasizes that the October 2022
substance-abuse evaluation did not recommend treatment and the PSI report
recommended the minimum sentence for OWI, second offense. Yet, the
sentencing court must merely “consider the substance abuse evaluation in
sentencing a second or subsequent OWI offender with an eye toward treatment
recommended as a result of the required evaluation.” State v. Ludley, 465 5
N.W.2d 912, 913 (Iowa Ct. App. 1990). Second, a PSI sentencing
recommendation does not bind the sentencing court but is simply “a factor that can
influence the sentencing decision.” State v. Hopkins, 860 N.W.2d 550, 557 (Iowa
2015); accord State v. Fesko, No. 13-1736, 2014 WL 2885336, at *3 (Iowa Ct. App.
June 25, 2014) (finding no abuse of discretion when the sentencing court declined
to follow the PSI’s sentencing recommendation).
True, prior to pleading guilty, Guy completed the court-ordered substance-
abuse evaluation and it did not recommend any treatment. But we find that
evaluation report does not offer much assurance that Guy has turned the corner
on accepting his problem with excessive alcohol consumption and driving, so we
understand the sentencing court’s hesitation. In part the evaluation noted that Guy
reported “the only legal issue he’s ever had was his OWI” in August 2022 (i.e. this
case). And the evaluator concluded that “[b]ased on what the client reports, no
[treatment] is recommended.” The PSI report also referenced an earlier
substance-abuse evaluation from March 2021 involving an earlier OWI charge that
recommended extended outpatient treatment but said “defendant was directed to
get another one,” which resulted in a no treatment recommendation. Thus, the
court’s hesitation over Guy’s rehabilitation as an important factor going forward
was not improper, as Guy suggests. The court was reasonable in its approach.
Next, Guy argues the sentencing court placed too much weight on this being
his third OWI when it instead should have only focused on a sentence to the crime
he pled to—OWI, second offense. But, Guy admitted on the record that he had
two previous convictions for OWI, and the PSI contained the same information.
See State v. Grandberry, 619 N.W.2d 399, 402 (Iowa 2000) (holding that the 6
sentencing court did not err in considering the defendant's traffic charges listed in
the PSI report when the defendant did not contest that data). And in any event,
the sentencing court considered that the crimes were all close in time and all
involved excessive use of alcohol on Iowa roads—a factor related to protection of
the community.
As a last argument, Guy asserts the sentencing court did not consider other
mitigating factors that he believes would have guided the court to a less harsh
sentence. “The societal goals of sentencing are to provide maximum opportunity
to rehabilitate the defendant and to protect the community.” Damme, 944 N.W.2d
at 106. “A sentencing court weighs multiple factors, ‘including the nature of the
offense, the attending circumstances, the age, character and propensity of the
offender, and the chances of reform,’” which encompass mitigating factors as well
as aggravating. Id. (quoting Formaro, 638 N.W.2d at 725). To his credit, Guy had
an excellent job, was seeking advancement there through training, had a strong
family support system, and professed to have changed for the benefit of his young
child. He also had a limited criminal history at his young age. As for its
consideration of those factors, the sentencing court began its pronouncement of
the sentence by highlighting just those strengths and then explained it “had serious
concerns for the safety of the community.” Finally, the sentencing court
emphasized from its review of the October 2022 substance-abuse evaluation there
remained concerns that Guy “minimized [his] behavior.” And in the sentencing
order, the court identified five specific factors that were most significant in
determining the sentence—all related to the discussion at the sentencing hearing.
Therefore, we find that Guy has failed to demonstrate any evidence of 7
unreasonable or untenable grounds relied on by the sentencing court. Absent any
showing of an abuse of discretion, we affirm the sentence imposed.
AFFIRMED.