STATE OF IOWA, Plaintiff - Appellee, vs. MICHAEL JOHN BYARS, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-777 / 08-0100
Filed October 15, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL JOHN BYARS,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,
Judge.
Defendant appeals his sentence following a guilty plea. AFFIRMED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Michael Walton, County Attorney, and Rob Cusack, Assistant County
Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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EISENHAUER, J.
Michael J. Byars appeals his sentence of ten years imprisonment following
his guilty plea to lascivious acts with a child. He claims the trial court abused its
discretion by (1) imposing a prison term based on an impermissible factor; (2)
basing the sentence on “one essential factor;” and (3) not employing a
presumption of probation. We affirm.
Originally charged with sexual abuse in the third degree, Byars pled guilty
to lascivious acts with a child and admitted he fondled or touched the pubes or
genitals of a girl under the age of fourteen. Byars was eighteen at the time of the
incident.
At sentencing the court rejected Byars’s request for probation and
sentenced him to prison.
Our review of sentencing decisions is for correction of errors at law. Iowa
R. App. P. 6.4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). A sentence
will not be upset on appeal unless the defendant demonstrates an abuse of trial
court discretion or a defect in the sentencing procedure. State v. Grandberry,
619 N.W.2d 399, 401 (Iowa 2000).
Sentencing decisions of the district court are cloaked with a strong
presumption in their favor. Where, as here, a defendant does not
assert that the imposed sentence is outside the statutory limits, the
sentence will be set aside only for an abuse of discretion. An abuse
of discretion is found only when the sentencing court exercises its
discretion on grounds or for reasons clearly untenable or to an
extent clearly unreasonable.
Thomas, 547 N.W.2d at 225. When a sentence is not mandatory, the district
court must exercise its discretion in determining what sentence to impose. Id.
Iowa Rule of Criminal Procedure 2.23(3)(d) requires a sentencing court to
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demonstrate its exercise of discretion by stating “on the record its reason for
selecting the particular sentence.” Failure to state on the record the reasons for
the sentence imposed requires the sentence be vacated and the case remanded
for amplification of the record and re-sentencing. State v. Marti, 290 N.W.2d 570,
589 (Iowa 1980); State v. Freeman, 404 N.W.2d 188, 191 (Iowa Ct. App. 1987).
The sentencing court, however, is generally not required to give its reasons for
rejecting particular sentencing options.
Thomas, 547 N.W.2d at 225.
In
considering sentencing options, the court is to determine, in its discretion, which
of the authorized sentences will provide both the maximum opportunity for the
rehabilitation of the defendant and for the protection of the community from
further offenses by the defendant and others. Iowa Code § 901.5 (2007); see
State v. Hildebrand, 280 N.W.2d 393, 395 (Iowa 1979).
Byars first argues the court abused its discretion in imposing a prison term
because it based its determination on only one sentencing factor.1
More
specifically, he contends the sentencing judge imposed a prison term based only
on the age of the victim. The age of the victim is an essential element of the
crime to which he pled guilty.
The record does not support Byars’s claim the court “made it perfectly
clear the victim’s age was the controlling factor” in sentencing.
Rather, the
sentencing court made clear on the record, it had received, examined, and
Byars makes a general allegation that the sentencing judge displayed a “prosecutorial
bias.” He supports this allegation with citation to prior appellate cases involving the
sentencing judge. These citations provide no benefit and our review of the proceedings
reveals no prosecutorial bias.
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considered the presentence investigation report which recommended probation.
It also received, from Byars, a letter from an organization Byars had volunteered
for and a letter from the Davenport North Little League containing positive
comments about Byars. From these documents, in particular the presentence
investigation report, the court was aware of and considered the circumstances
surrounding the crime: Byars’s age, eighteen years; Byars’s record of three
convictions for speeding, two convictions for careless driving, two convictions for
improper use of lanes, one conviction for failure to surrender plates, title or
registration; and a conviction for fourth-degree theft.
Additionally, the
presentence report showed Byars had unpaid fines. The court also heard and
considered a statement from both Byars and his attorney.
Further, in setting forth reasons for the sentence imposed, the court
stated:
Well, I’ve given the matter considerable thought. I have
reviewed the presentence investigation, including the prior record of
criminal convictions. And even considering the crime from the
standpoint only of what the defendant is willing to acknowledge that
he did, he knew this was a person who was not of legal age,
whether he thought she was sixteen or, as he says in his version,
that her friend said she was fifteen and going to be sixteen in four
days, to me is of little consequence, and he knows what he did was
wrong. It’s a very serious matter. The reason why the State is not
required in a criminal prosecution to prove that the defendant knew
that is that we need to protect children of that age regardless of
what are the things they’re doing. We place the burden on the
adult.
My impression is that the defendant has very little direction
in his life from the presentence investigation. He has accomplished
very little in terms of any sort of recognized goals to achieve
adulthood.
He’s just been running amok.
Certainly that’s
evidenced by the fact that this crime occurred while other criminal
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charges, and serious criminal charges, were pending against him
that he’s pled guilty to in the interim period of time.
The court finds that a deferred judgment would not be
appropriate and probation is not appropriate in light of the needs of
this defendant and the needs to protect society from his conduct.
Accordingly, defendant is sentenced to a term of not to exceed ten
years imprisonment.
The court’s statement shows it not only properly considered the serious
nature of the offense, an appropriate factor, see State v. Dvorsky, 322 N.W.2d
62, 67 (Iowa 1982) (stating the nature of the offense is a necessary factor to
consider when exercising sentencing discretion), but also considered other
appropriate factors such as the impact of the crime on the victim and others. In
addition, the court expressly considered such things as Byars’s need for and
prospects for rehabilitation and what a proper rehabilitative plan might be,
protection of the community, and deterrence.
These are proper matters for
consideration when weighing sentencing options.
See Iowa Code §§ 901.5,
907.5.
We conclude, contrary to Byars’s claim of error, the district court
considered and weighed numerous, appropriate factors in arriving at a sentence.
Second, Byars repeats his argument about the victim’s age and Byars’s
knowledge of the age as “the main reason for the sentence.” We will not repeat
our discussion above and find no abuse of discretion.
Finally, we address Byars’s argument that when imprisonment is not
mandatory, trial courts should employ a presumption in favor of probation. The
only authority Byars cites for this contention is Iowa Code chapter 901B. The
statute sets forth a continuum of correctional alternatives to be used in dealing
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with probation violators, with jail and prison sentences being the last resort. Also,
under this chapter reasons must be given when an individual is transferred
between continuum levels. See Iowa Code § 901B.1(3).
Based on this statute, Byars argues the legislature has determined most
offenders can be rehabilitated in the community and jail and prison sentences
should be a last resort. We believe Byars reads more into this statue than was
intended by the legislature.
First, this statute applies only to those persons already granted and on
probation, not to those who have not yet been sentenced. Second, we believe
establishing a preference for, or presumption in favor of, probation involves a
matter of public policy more appropriately decided by the legislature than by the
courts. Our role is “to give effect to the law as written.” State v Wagner, 596
N.W.2d 83, 88 (Iowa 1999). If the legislature had intended to reduce jail and
prison incarceration by requiring judges to employ a presumption of probation in
sentencing, it would have done so expressly. It has not. Iowa statutes allow
judges to impose sentences in their discretion, including exercising options such
as probation. See Iowa Code §§ 901.5, 907.3. However, the legislature has not
required courts to employ a presumption of probation. We will not substitute our
judgment for that of the legislature on this policy issue.
Based on our review of the entire record, and for all of the reasons set
forth above, we conclude the sentencing judge did not base his sentencing
decision on only one factor or use inappropriate factors and thus did not abuse
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his sentencing discretion.
Further, the court was not required to employ a
presumption in favor of probation.
AFFIRMED.
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