State of Iowa v. Mangok Ajuet Kodok

• Court: Court of Appeals of Iowa
• Decided: May 1, 2019
• Docket: 18-0644
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0644 Filed May 1, 2019

STATE OF IOWA, Plaintiff-Appellee,

vs.

MANGOK AJUET KODOK, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Becky Goettsch,

District Associate Judge.

The defendant appeals the district court’s decision to revoke his deferred

judgment and impose terms of incarceration. AFFIRMED.

Nathan A. Olson of Branstad & Olson Law Office, Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.

Considered by Potterfield, P.J., and Tabor and Bower, JJ. 2

POTTERFIELD, Presiding Judge.

Mangok Kodok pled guilty to one count of possession of a controlled

substance (marijuana) in case number SRCR305546 and another count in case

number SRCR308868. On appeal, he challenges the district court’s revocation

of his deferred judgment in case SRCR305546 and argues there is not a factual

basis to support his guilty plea in case SRCR308868. Additionally, he claims the

court abused its discretion in sentencing him to jail time on the two convictions.

On May 8, 2017, Kodok was driving a vehicle that was stopped by police.

According to the officer’s report, he smelled marijuana emanating from the

vehicle as he got near the car. When the officer questioned Kodok about the

smell, Kodok admitted smoking a marijuana blunt in the car. The officer

searched Kodok’s vehicle and found a bag with marijuana inside and a black

digital scale; Kodok admitted the contraband was his.

Pursuant to a plea agreement with the State, Kodok entered a guilty plea

to possession of a controlled substance (marijuana) in case SRCR305546. The

State agreed judgment should be deferred, and Kodok was placed on probation

for one year. As part of his probation, Kodok was to complete forty hours of

community service; undergo a substance-abuse evaluation and treatment; and

pay various surcharges, fees, and fines. Kodok pled guilty on July 25, and he

was sentenced in accordance with the plea agreement.

On August 17, Kodok was again arrested for possession of a controlled

substance (marijuana). As had occurred in May, Kodok was stopped while

driving a vehicle that smelled of marijuana, and Kodok admitted to officers that 3

he had marijuana in the car. Kodok later entered a guilty plea to the charge in

case SRCR308868.

The district court set a joint hearing for probation disposition in case

SRCR305546 and sentencing for case SRCR308868 to take place on March 20,

2018. Before the hearing, Kodok’s probation officer filed a number of reports of

probation violations, including Kodok’s August arrest for possession, a November

2017 report Kodok had “sporadic treatment attendance” and “continued to use

marijuana,” a December 2017 report Kodok had been discharged from treatment

and was unsuccessful “due to his inability to commit to change and follow

through,” a January 2018 report Kodok tested positive for THC when drug tested

by his probation officer, and a March 2018 report Kodok failed to attend his new

substance-abuse treatment and was reporting he did not need treatment.

At the hearing, Kodok stipulated that he was in violation of the terms of his

probation and admitted to the allegations included in the violation reports. The

Stated asked the court to revoke Kodok’s probation in case SRCR305546,

impose judgment, and sentence Kodok to a thirty-day term of incarceration for

each of the two convictions. Kodok asked that his probation for case

SRCR305546 continue and that the court order him to serve probation in case

SRCR308868 as well. Kodok maintained his recent failure to engage in

substance-abuse treatment was because his insurance would not pay for the

treatment and he could not otherwise afford it.

The court revoked Kodok’s deferred judgment in case SRCR305546 and

sentenced him to a term of incarceration not to exceed fifteen days. The court 4

also sentenced Kodok to fifteen days incarceration in case SRCR308868. Kodok

was ordered to serve the two sentences concurrently.

On appeal, Kodok first claims the district court committed legal error in

deciding to revoke his deferred judgment. But Kodok does not allege the

revocation was unsupported by the evidence. In considering whether a

revocation was improper, our court has said:

Probation revocation is a civil proceeding, not a stage of the criminal proceeding, and the rules of criminal procedure do not apply. It is only necessary that proof of a violation of the terms and conditions of a probation agreement be supported by a preponderance of the evidence to justify a revocation. A preponderance of the evidence will support the revocation of a deferred judgment, as well as a probation violation, after a conviction. Revocations are reviewed for abuse of discretion, and it has been asserted that an admission will satisfy the requirement. . . . In the instant case there was an unqualified admission to the violation made in response to a direct question. The revocation was supported by a preponderance of the evidence, and there was no abuse of discretion.

See State v. Kline, No. 12-0366, 2013 WL 3291865, at *2 (Iowa Ct. App. June

26, 2013) (citations omitted). Like in Kline, Kodok stipulated that he was in

violation of the terms of his probation at the time of the disposition hearing.

Therefore, we cannot say the court erred.

Next, Kodok claims there is not a factual basis to support his guilty plea in

case SRCR308868. But Kodok did not file a motion in arrest of judgment to

challenge his plea. See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to to

challenge the adequacy of a guilty plea proceeding by motion in arrest of

judgment shall preclude the defendant’s right to assert such a challenge on

appeal.”). And he does not raise the claim in the context of ineffective assistance

of counsel. See, e.g., State v. Martin, 778 N.W.2d 201, 203 (Iowa Ct. App. 2009) 5

(recognizing cases where the supreme court considered whether a factual basis

existed under the ineffective-assistance framework). We do not consider this

issue further.

Finally, Kodok challenges the district court’s decision to impose a term of

incarceration for each of his convictions. He argues the court inappropriately

considered his indigency and failed to consider the mitigating factor of his age

when imposing sentence. We will not reverse the sentencing decision of the

district court “absent an abuse of discretion or some defect in the sentencing

procedure.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We

acknowledge Kodok maintained his failure to comply with the terms of his

probation to complete substance-abuse treatment was due to his inability to

afford treatment. But the district court did not revoke Kodok’s probation and

sentence him to jail time because of his indigency. While the court considered

Kodok’s failure to participate in treatment in making its sentencing decision, the

court recognized that Kodok told his treatment counselors he did not believe he

needed treatment and that he continued to test positive for THC throughout his

period of probation—as late as January 2018. The court noted Kodok had

received leniency before due to his age but refused to give him another chance

at probation for the offense. The court was not required to consider Kodok’s age

as a mitigating factor; Kodok was twenty years old at the time of his crimes—not

a juvenile. See Smith v. State, No. 16-1711, 2017 WL 3283311, at *2 (Iowa Ct.

App. Aug. 2, 2017) (collecting cases rejecting attempts to apply juvenile

sentencing rules to individuals older than eighteen years of age). Moreover,

insofar as Kodok argues the district court failed to consider all appropriate 6

factors, “a sentencing court need only explain its reasons for selecting the

sentence imposed and need not explain its reasons for rejecting a particular

sentencing option.” State v. Crooks, 911 N.W.2d 153, 171 (Iowa 2018) (citation

omitted). Kodok has not over overcome the presumption in favor of the sentence

imposed by the court. See id. We affirm.

AFFIRMED.