State v. Graw

• Court: Court of Appeals of Iowa
• Decided: January 10, 2018
• Docket: 17-0767
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0767 Filed January 10, 2018

STATE OF IOWA, Plaintiff-Appellee,

vs.

RICHARD KENT GRAW, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.

Defendant appeals his convictions and sentences for second-degree

burglary, stalking, and tampering with a witness. AFFIRMED.

C. Aron Vaughn of Kaplan & Frese, L.L.P., Marshalltown, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.

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

BOWER, Judge.

Richard Graw appeals his convictions and sentences for second-degree

burglary, stalking while subject to a protective order, and tampering with a

witness. We find the district court did not abuse its discretion by determining

Graw should serve consecutive prison sentences. We affirm Graw’s convictions

and sentences.

I. Background Facts & Proceedings

According to the minutes of testimony, Graw’s former girlfriend, Tara,

obtained a no-contact order against him. Graw continued to contact Tara and

threatened her. One night, while Tara was staying with her sister, Rita, Graw

broke into Rita’s home and yelled at Tara. Graw pushed Tara’s mother, Jolene,

out of the way, injuring her, as he ran out of the home. Graw was charged with

first-degree burglary, being a prohibited person in possession of ammunition,

stalking while subject to a protective order, and assault causing bodily injury.

After Graw was released from jail, he sent a text message to Tara stating,

“U are going to get what you have coming . . . .” Tara perceived the message as

a threat. Graw was additionally charged with tampering with a witness.

Graw entered into a plea agreement in which he agreed to plead guilty to

burglary in the second degree, in violation of Iowa Code section 713.5 (2016), a

class “C” felony; stalking while subject to a protective order, in violation of section

708.11(3)(b)(1), a class “D” felony; and tampering with a witness, in violation of

section 720.4, an aggravated misdemeanor. In exchange, the State agreed to

dismiss the other charges against him. The district court accepted Graw’s guilty

plea. 3

At the sentencing hearing, the State recommended Graw be sentenced to

prison terms of ten years, five years, and two years, to be served consecutively,

noting the case involved three separate crimes. Graw asked to receive

suspended sentences and to be placed on probation. The presentence

investigation report recommended Graw be sent to prison. Graw’s criminal

history showed he had three previous convictions for operating while intoxicated,

a conviction for third-degree burglary, and a conviction for possession of a

controlled substance. He had been placed on probation for these offenses.

Graw was forty-six years old, was unemployed, and has a history of substance

abuse.

The district court considered all of these factors. The court specifically

noted Graw’s lack of remorse and his failure to obey court orders. The court

sentenced Graw to a term of imprisonment not to exceed ten years on the charge

of second-degree burglary, five years on the charge of stalking, and two years on

the charge of tampering with a witness, to be served consecutively. The court

stated Graw was “an individual who simply will not accept responsibility and will

not—will not make any effort—any noticeable effort, and detectable effort to

change his conduct.” The court found the case involved different violations and

different victims. Graw appeals his convictions and sentence.

II. Standard of Review

If a sentence is within the statutory limits, we review a district court’s

sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,

552 (Iowa 2015). “Thus, 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 4

untenable grounds.” Id. at 553. “In other words, the district court did not abuse

its discretion if the evidence supports the sentence.” Id.

III. Sentencing

Graw claims the district court abused its discretion by sentencing him to

prison and by making his sentences run consecutively. He states the court

should have suspended his sentences and placed him on probation. Graw

points out he previously completed probation without having his probation

revoked. He claims he primarily needs treatment for substance abuse and he

could participate in a program while at a residential facility.

We find the district court did not abuse its discretion by determining Graw

should serve consecutive prison sentences. Graw committed three separate

offenses, which occurred over several months. His offenses involved three

victims—Tara, Rita, and Jolene. Graw showed a repeated disregard for the

no-contact order. Furthermore, he failed to accept responsibility for his actions

and showed a lack of remorse. The court gave adequate reasons for sentencing

Graw to prison and running the sentences consecutive.

We affirm the decision of the district court.

AFFIRMED.