State of Iowa v. Wendy Lynn Horak

• Court: Court of Appeals of Iowa
• Decided: September 27, 2017
• Docket: 16-1697
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1697 Filed September 27, 2017

STATE OF IOWA, Plaintiff-Appellee,

vs.

WENDY LYNN HORAK, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill,

Judge.

The defendant appeals her sentences. AFFIRMED.

Gerald J. Kucera, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., Doyle, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2

BLANE, Senior Judge.

Wendy Horak was sentenced to a term of incarceration not to exceed five

years for her convictions for forgery and gathering where controlled substances

are used and possessed (methamphetamine). At the same sentencing hearing,

the court revoked Horak’s probation in two additional cases and imposed the

original sentences: five years for forgery and ten years for money laundering.

The court ordered the sentences resulting from the revoked probation to run

concurrent to each other but consecutive to the new sentences, for a total term of

incarceration not to exceed fifteen years.

Horak appeals, claiming the district court failed to provide an adequate

explanation for imposing consecutive sentences using the pertinent sentencing

factors and reached its decision by relying on improper factors. More

specifically, Horak complains the court imposed consecutive sentences because

of “the message it sends,” which she maintains is neither an appropriate

sentencing consideration nor an adequate reason.

“Our review of a sentence imposed in a criminal case is for correction of

errors at law.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “We will not

reverse the decision of the district court absent an abuse of discretion or some

defect in the sentencing procedure.” Id. “A district court abuses its discretion

when it exercises its discretion on grounds clearly untenable or to an extent

clearly unreasonable. A district court’s ground or reason is untenable when it is

not supported by substantial evidence or when it is based on an erroneous

application of the law.” State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016) (citation

omitted). 3

When imposing the sentences, the court stated the following:

Now, the State is recommending that these two sentences run concurrent to each other but consecutive to your other sentences. Again, based upon your criminal history and your conduct, I don’t think that running all of these sentences consecutively is out of line. However, I’ll go with the State’s recommendation on these new charges and run these two five-year sentences concurrently with each other, but I do think that they should be consecutive to your prior sentences because, again, being on probation and being given several chances is not a license to go out and keep committing crimes, and that’s exactly what you’ve done here. And to do anything other than give you a consecutive sentence for these new offenses, to me, sends the wrong message to you and the wrong message in general. The consecutive sentences are warranted because these are new offenses, and the fact that they were done when you were on probation certainly heightens the seriousness in my mind. And, again, I think they—these—both of these new ones do warrant to be run consecutive with each other as well, but I’m going with the State’s recommendation and running them concurrently. So you’re going to prison for a total of an indeterminate term not to exceed 15 years. Now, on the flip side of this, if you are sincere with your newfound motivation to make good, then you’re going to get a chance to do that. Prison will give you some programs to deal with that and the Parole Board will take all that into account. I’ll certainly recommend to the Parole Board that they consider all possible avenues and benefits that they have at their disposal and under their jurisdiction, and if you earn the right to be paroled, then you should do that. And I know you’ve been down this road before and you had a chance at least once in the past where you were paroled and had that revoked, but it looks like your—if your current motivation continues, then perhaps you’ll be successful this time around.

Horak claims the court’s statement that it was imposing consecutive

sentences because to do otherwise “sends the wrong message to you and the

wrong message in general” shows the court considered an improper factor. She

relies on State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999) to support her claim. In

Laffey, the sentencing court listed as one of its considerations for imposing

consecutive sentences the difficulty in explaining to a young victim of sexual 4

abuse “why the crime against her did not require punishment when the crime

against the other child did.” 600 N.W.2d at 62. Our supreme court noted that

such an explanation may be difficult but found such a consideration was not

appropriate in determining what sentence to impose, stating:

This difficulty does not go to the nature or severity of the offense; it is unrelated to the circumstances of the crime; it does not reflect on the defendant’s character or propensities, or on his chances for reform or rehabilitation; and it has no bearing on the court’s duty to protect the community from further offenses by the defendant or others.

Id. In response, the State claims the court’s use of the colloquialism “send the

message” was actually a reference to deterrence, both of Horak, specifically, and

others generally. We agree with the State’s understanding.

The sentencing court’s consideration of deterrence falls within its mandate

to impose a sentence that “protect[s] . . . the community from the further offenses

by the defendant and others.” See Iowa Code § 901.5 (2016). Moreover,

deterrence is a “legitimate penological justification.” See State v. Oliver, 812

N.W.2d 636, 646 (Iowa 2012). We have approved of a sentencing court’s

imposition of “a more severe consequence to stand as both a general and

specific deterrence.” See State v. Villa, No. 11-1134, 2012 WL 1247115, at *2

(Iowa Ct. App. Apr. 11, 2012). The court’s statement it was imposing

consecutive sentences because doing otherwise “sends the wrong message to

you and the wrong message in general” was not an improper factor.

Also, the court did not fail to provide an adequate reason on the record for

ordering consecutive sentences. The court referenced Horak’s lengthy criminal

history of twenty years; the goal of deterrence; the seriousness of the offenses, 5

committed while Horak was already on probation for other felonies; and Horak’s

chances of rehabilitation. These are proper factors to be considered, see State

v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006), and the court’s recitation

provided “detailed reasons for a sentence specific to the individual defendant and

crimes,” Hill, 878 N.W.2d at 275.

We affirm.

AFFIRMED.