STATE OF IOWA, Plaintiff-Appellee, vs. GARY RAY HENO, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-323 / 06-1103
Filed June 27, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GARY RAY HENO,
Defendant-Appellant.
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Appeal from the Iowa District Court for Story County, Steven P. Van
Marel, District Associate Judge.
Gary Heno appeals from his sentences for two counts of delivery of a
controlled substance. JUDGMENT AFFIRMED, SENTENCES VACATED AND
REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney
General, Stephen Holmes, County Attorney, and Stephen Owen, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
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HUITINK, P.J.
I. Background Facts and Proceedings.
Gary Heno was charged with two counts of delivery of a controlled
substance (marijuana), in violation of Iowa Code section 124.401(1)(d) (2005). A
jury convicted Heno on both counts. The district court sentenced Heno to fiveyear prison sentences on each count and ordered the sentences run
consecutively. Heno was ordered to pay fines and restitution, and his driving
privileges were revoked for 180 days.
On appeal, Heno argues:
I. The trial court erred in not providing sufficient reasons for giving
the defendant a consecutive sentence.
II. The sentencing court abused its discretion when it considered
unproven offenses in sentencing the defendant.
III. The trial court abused its discretion by lengthening Heno’s
sentence to prevent his early release on parole.
II. Standard of Review.
When a failure to exercise sentencing discretion is alleged, our standard
of review is for abuse of discretion. State v. Craig, 562 N.W.2d 633, 634 (Iowa
1997). An abuse of discretion will be found only when a court acts on grounds
clearly untenable or to an extent clearly unreasonable. Id. Appellate review of a
sentence in a criminal case is for correction of errors at law when consideration
of improper factors is alleged. State v. Formaro, 638 N.W.2d 720, 724 (Iowa
2002). The normal rules of error preservation do not apply to void, illegal, or
procedurally defective sentences. State v. Thomas, 520 N.W.2d 311, 313 (Iowa
Ct. App. 1994).
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III. Discussion.
Consecutive Sentences. When sentencing a defendant, the district court
must exercise the sentencing option that would best accomplish justice for both
society and the individual defendant. State v. Fink, 320 N.W.2d 632, 634 (Iowa
Ct. App. 1982).
The district court should weigh all pertinent factors in
determining a proper sentence, including the nature and the seriousness of the
offense,
the
attending
circumstances,
defendant’s
age,
character,
and
propensities and chance for reform. State v. Johnson, 476 N.W.2d 330, 335
(Iowa 1991).
The district court is required to state on the record its reasons for imposing
consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). A
statement may be sufficient, even if terse and succinct, so long as the brevity of
the court’s statement does not prevent review of the exercise of the trial court’s
sentencing discretion.
State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989).
Furthermore, the district court is permitted to express its reasons for imposing
consecutive sentences as part of the overall sentencing plan. Id.
The following is the relevant portion of the sentencing transcript:
THE COURT: Mr. Heno, as I impose your sentences today,
there are two things I hope these sentences will accomplish and
those two things are your rehabilitation and protection for our
community from further offenses from you. Mr. Heno, the evidence
here establishes on the one hand that you are maintaining
employment, you have a family, and you have their support.
On the other hand, the record shows that in 2002 you were
put on probation for this very same offense. Then in 2003 you were
convicted of harassment. You got a year suspended jail sentence,
and later on after that in 2004 you were convicted or pled guilty to a
charge of simple misdemeanor assault. Now you’re back in court
on two more charges of selling marijuana. It’s pretty clear, Mr.
Heno, that in 2002 that probationary period was not successful. I
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can’t believe that probationary period didn’t have a requirement that
you get a substance abuse evaluation and go to treatment when it
was a felony charge of delivery of a controlled substance. Now
you’re back here again committing the same offense.
Mr. Heno, as I brought up earlier in this hearing, you need to
understand that your actions do pose a threat to the safety of the
community. You have no idea who grew the marijuana you sold.
You don’t know where it came from; you don’t know how many
hands it passed through to get to you. As a person willing to buy a
controlled substance, you bear some responsibility for other people
selling controlled substances. They are filling the demand that you
create; and then to make it worse, you sold it again. Then you
have absolutely no idea what happens to that marijuana. As you
mentioned, it could easily end up in the very school where your
children are.
Mr. Heno, this isn’t just a possession charge. This is a
situation where you sold twice to people working for law
enforcement or undercover law enforcement agents after having
done the same thing just a few years ago. Mr. Heno, even given
the support that you have here with your family, I don’t understand
how continued probation is going to do anything to rehabilitate you
or to protect our community from further offenses from you when,
by your own actions, you have demonstrated that probation simply
didn’t work. You were more interested in taking care of your own
needs than you were in protecting your family and the community.
Even though you have your family support here, Mr. Heno, I
am going to send you to prison because I think that is the only
appropriate sentence. I don’t think that continued probation or
another probationary period is appropriate. I don’t think that a
residential facility is appropriate. I think that you need to go to
prison. Realistically, Mr. Heno, given credit for good time and
honor time and credit for time served, you are not going to spend
anywhere close to the maximum prison terms in prison, but I think
prison here is appropriate because finally, Mr. Heno, you will
understand what the consequences are of selling controlled
substances and those consequences are you go to prison.
While in prison, you can and will receive substance abuse
treatment. While in prison our community will be protected from
your actions. I think by the time you complete this prison term you
will have a full and complete understanding about how dangerous
and how serious your actions are and how important it is that you
do a better job making decisions in your life.
It is the order of this court that you are adjudged guilty of two
counts of delivery of a controlled substance, marijuana, in violation
of Section 124.401(1)(d)(2) of the Iowa Code. On each of these
charges you are committed to the custody of the Director of the
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Iowa Department of Corrections for an indeterminate term not to
exceed five years with credit for time served. . . .
You are ordered on each charge to pay a $750 fine, 32
percent surcharge, $10 DARE surcharge, and a $125 law
enforcement initiative surcharge. Your driving privileges on each
charged are revoked for a period of 180 days. You shall pay
restitution in the total amount of $135. It is the further order of this
court that these sentences shall be served consecutively. You shall
immediately report to the Story County Sheriff’s Office to begin
service of these sentences.
Although the trial court expressed its reasons for incarcerating rather than
placing Heno on probation, the court failed to state its reasons for imposing
consecutive sentences. See State v. Jacobs, 607 N.W.2d at 670. Moreover, the
trial court’s stated reasons for the sentences imposed fail to explain how the
imposition of consecutive sentences would facilitate the court’s overall
sentencing objectives. Heno correctly notes that more is required to enable the
court to perform its duty. State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996).
Heno’s convictions are accordingly affirmed, the sentences imposed are
vacated, and the case is remanded for resentencing. Because the foregoing is
dispositive, we need not consider the remaining issues raised on appeal.
JUDGMENT AFFIRMED, SENTENCES VACATED AND REMANDED
FOR RESENTENCING.
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