State v. Mai

572 N.W.2d 168, 1997 Iowa App. LEXIS 102, 1997 WL 786914
CourtCourt of Appeals of Iowa
DecidedOctober 29, 1997
Docket96-1730
StatusPublished
Cited by17 cases

This text of 572 N.W.2d 168 (State v. Mai) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mai, 572 N.W.2d 168, 1997 Iowa App. LEXIS 102, 1997 WL 786914 (iowactapp 1997).

Opinion

HUITINK, Judge.

Jay Lee Mai appeals from the sentence imposed by the district court following his conviction of operating a motor vehicle while intoxicated, first offense.

I. Background Facts and Proceedings.

Mai was charged with vehicular homicide following an automobile accident in which Heidi Wiltse died. This charge was filed after tests revealed Mai’s blood alcohol content was .2313 at the time of the accident. A jury acquitted Mai of vehicular homicide, but found him guilty of the lesser-included offense of operating a motor vehicle while intoxicated, first offense.

After a sentencing hearing, the court imposed the following sentence: (1) a $1000 fine plus thirty percent surcharge; (2) a one-year jail term, with all but the first ninety days suspended; (3) work release privileges; (4) supervised one-year probation; (5) conditions of probation included (a) payment of restitu *170 tion, fine, surcharge, and court costs, (b) completion of the recommendations made in the substance abuse evaluation, and (c) all terms and conditions proposed in the presen-tence investigation; and (6) payment of pecuniary damages to all victims. The court ordered any victim restitution would not be determined until after the disposition of a related wrongful death action against Mai. The court gave the following reasons for the sentence imposed:

The nature of the crime committed, age, past record, recommendations in the substance abuse evaluation, your blood-alcohol test result and the recommendations and facts included in the presentence investigation.

On appeal Mai contends the district court’s abuse of its sentencing discretion necessitates a remand for resentencing. He cites the disproportionate severity of his sentence and the district court’s failure to state adequate reasons for the sentence imposed as justification for appellate relief.

Mai also challenges the restitution provisions of his sentence. He argues the jury’s verdict acquitting him of vehicular homicide precludes restitution for Wiltse’s wrongful death damages. The sentencing court’s deferral of its final restitution decision and failure to consider Mai’s ability to re-pay court costs and attorneys fees are cited as additional errors.

The State contends Mai failed to preserve error on any restitution issues because he failed to cite any authority in his brief supporting his claim error was preserved. The State also argues any error was waived by Mai’s failure to object at the sentencing hearing when restitution was ordered. Lastly, the State argues Mai’s restitution claims are premature because the court deferred determination of the amount of restitution pending resolution of a related wrongful death claim brought by Wiltse’s estate against Mai.

II. Standard of Review.

We review the district court’s sentencing decision for an abuse of discretion. State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991). No abuse of discretion will be found unless the defendant shows that such discretion was exercised for reasons clearly untenable or to an extent clearly unreasonable. Id. Where an improper sentence is severable this court may strike invalid portions of the sentence without disturbing the remainder and remand for appropriate action in the district court. State v. Hutt, 548 N.W.2d 897, 898-99 (Iowa App.1996).

III. Merits.

A. Failure to State Adequate Reasons for Sentence. A sentencing court is required to state on the record its reasons for selecting a sentencing option. Iowa R.Crim. P. 22.3(d); State v. Luedtke, 279 N.W.2d 7, 8 (Iowa 1979). The purpose of this rule is to allow the appellate court to determine whether there has been an abuse of discretion. State v. Mickens, 462 N.W.2d 296, 299 (Iowa App.1990). Failure to adequately do so requires us to vacate the sentence and remand the ease for resentencing. See State v. Taggart, 525 N.W.2d 877, 882 (Iowa App.1994) (citations omitted).

Here, the district court made a brief but nonetheless adequate statement of its reasons for the sentence imposed. We find it sufficient for our purposes and proceed to consider the merits of Mai’s claim that the district court abused its sentencing discretion.

B. Severity of Sentence. It is well settled that the measure of punishment selected by the district court lies within its sentencing discretion. State v. Patterson, 161 N.W.2d 736, 737 (Iowa 1968). The sentencing court’s duty is to consider all available sentencing options, give consideration to all circumstances of a particular case, and to exercise the sentencing option which will best accomplish justice for society and for the defendant. State v. Robbins, 257 N.W.2d 63, 70 (Iowa 1977). When a sentence falls within statutory limits it will only be set aside for an abuse of discretion. State v. Neary, 470 N.W.2d at 29.

Mai’s fine and jail sentence are within the applicable statutory limits. See Iowa Code §§ 321J(2)(a), 903.1(1)(1993). The pre-sentence report confirms his prior criminal *171 record including a history of drunk driving convictions. Mai also has a chronic substance abuse problem which requires professional counseling and treatment. Moreover, prior sentences of lesser severity have been without deterrent effect. The sentencing record confirms the propriety of the sentence imposed by the district court and we find no abuse of discretion. Mai’s fine, jail sentence, term of probation, and attendant conditions are affirmed with the exceptions hereinafter provided.

C. Victim Restitution. We initially reject the State’s claim that Mai failed to preserve error on this issue. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa App.1994)(defendant need not object to sentencing irregularity to preserve issue for appeal). We also note Mai’s substantial compliance with Iowa Rule of Appellate Procedure 14(a)(5) was sufficient to identify the means by which any error was preserved.

Restitution is authorized only by statute. State v. Wagner, 484 N.W.2d 212, 215 (Iowa App.1992). It is a mandatory part of sentencing in Iowa and is defined in fairly broad terms. Id.; Iowa Code § 910.1(3)(1993).

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Bluebook (online)
572 N.W.2d 168, 1997 Iowa App. LEXIS 102, 1997 WL 786914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mai-iowactapp-1997.