STATE OF IOWA, Plaintiff - Appellee, vs. FREDRICK DEVONE VESEY, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-992 / 08-0912
Filed December 31, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
FREDRICK DEVONE VESEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers,
Judge.
Appeal from the sentences imposed following guilty pleas to a class C and
class D felony. AFFIRMED.
Matthew A. Leddin of Soper Law Firm, P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Michael J. Walton, County Attorney, and Kelly G. Cunningham,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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SACKETT, C.J.
The defendant-appellant, Fredrick Vesey, appeals from the sentences
imposed following his guilty pleas to a class C and class D felony for drug
possession with intent to deliver. He contends the court abused its discretion by
considering impermissible factors in sentencing and this procedural defect
requires resentencing. We affirm.
I. Background
The State charged the defendant with five drug-related offenses following
a consent search of an apartment where he was staying. He agreed to plead
guilty to two of the charges and the State agreed to ask the court to dismiss the
three remaining charges. At sentencing, the court reviewed the presentence
investigation, allowed the defendant to speak, and heard arguments of counsel.
Defense counsel asked the court to grant a deferred judgment, or,
alternatively, to waive the mandatory minimum sentence on the class C felony
and place the defendant on probation.
Counsel stated that the defendant
qualified for the waiver of the mandatory minimum sentence and to be placed on
probation because of his minimal criminal record, his assistance to police, and
because this was his first felony drug conviction.
Counsel noted that the
defendant has substantial physical and mental disabilities and subsists on social
security disability.
Defense counsel reported that he unsuccessfully attempted to have the
defendant placed in two community-based programs—drug court and the
residential correctional facility—as an alternative to incarceration. Defendant’s
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mental and physical disabilities and his placement on the sex offender registry
prevented his acceptance into either community-based program.
The presentence investigation noted the defendant has borderline
intellectual functioning, received burns over eighty percent of his body as a
child—resulting in the amputation of all of his toes, is diagnosed with adjustment
disorder with depressed mood, was diagnosed with HIV in 2006, and needed to
abstain from alcohol and drug use.
The investigation also reported the
defendant’s criminal history and his successful discharge from probation on a
2006 sexual abuse conviction. The investigation recommended incarceration:
It is unfortunate that there are no programs within the community
for the defendant. He obviously needs supervision and cannot get
it from his family, as they are all criminally oriented. Unfortunately,
the best place to put him so he gets the services that he needs is
the Iowa Prison System.
The State agreed with the recommendation of the presentence
investigation, noting that the defendant admitted having a drug problem that was
best dealt with in a structured setting.
The court sentenced the defendant to up to ten years on the class C
felony and up to five years on the class D felony, to be served concurrently. It
waived the mandatory minimum sentence, imposed the recommended fines and
required surcharges, and ordered a 180-day revocation of the defendant’s
license to drive.
The court gave the following reasons for the sentences
imposed:
Mr. Vesey, I read through your presentence investigation,
and it does appear to me as though the recommendation for this
sentence is almost based upon the fact that we don’t really have
resources available directly in the community that meet your needs
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at this time, especially in light of the fact these are two serious
felony drug charges.
I can appreciate the fact the you’ve tried to do what you
could to assist law enforcement and to be as cooperative as
possible, and that’s why I’m waiving your mandatory minimum
sentence in count 1.
I do believe that, after reviewing the matters that are
contained within this presentence investigation—you did have a
couple of prior just simple possession of controlled substances and
you did have a previous sexual abuse third degree, which as I
understand you have completely discharged your probation—but
unfortunately that leaves you with limitations of where you can live
in the community, as you’ve pointed out, and those are all very
complicated factors.
Given the whole picture, I think that what I’m left with is that I
don’t have community resources for you at this time and I must use
the alternative of incarcerating you. And again, that’s supported by
how serious these charges are.
The defendant appeals, contending the court abused its discretion by
considering impermissible factors in sentencing.
II. Scope and Standards of Review
We review a sentence imposed in a criminal case for correction of errors
at law.
Iowa R. App. P. 6.4; State v. Formaro, 638 N.W.2d 720, 724 (Iowa
2002). The decision to impose a particular sentence within the statutory limits is
cloaked with a strong presumption in its favor, and will only be overturned for an
abuse of discretion or the consideration of inappropriate matters.
State v.
Pappas, 337 N.W.2d 490, 494 (Iowa 1983). We will not reverse the decision of
the district court absent an abuse of discretion or some defect in the sentencing
procedure. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). In applying its
discretion the court should weigh and consider all pertinent matters in
determining the proper sentence, including the nature of the offense, the
attending circumstances, the defendant’s age, his character and propensities,
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and his chances of his reform. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).
Iowa Code section 901.5 (2007), requires the court to determine the sentence
that “will provide maximum opportunity for the rehabilitation of the defendant, and
for the protection of the community from further offenses by the defendant and
others.” “The punishment should fit both the crime and the individual.” State v.
Leckington, 713 N.W.2d 208, 216 (Iowa 2006) (citation omitted). An abuse of
discretion will not be found unless the sentencing decision was exercised on
grounds or for reasons that were clearly untenable or unreasonable. State v.
Loyd, 530 N.W.2d 708, 713 (Iowa 1995). 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 untenable grounds. See State v. Gartin, 271 N.W.2d
902, 910 (Iowa 1978).
III. Merits
The defendant asserts the court considered impermissible factors—the
defendant’s mental and physical disabilities and the lack of community-based
programs suitable for the defendant. Paraphrasing Laffey, 600 N.W.2d at 62, he
argues:
Neither factor goes to the nature or severity of the offense. They
are unrelated to the circumstances of the crime. Neither factor
reflects on Mr. Versey’s character or propensities. They are not
indicative of his chances for reform or rehabilitation. Neither factor
has any bearing on the sentencing court’s duty to protect the
community from further offenses by Mr. Versey and others.
The district court did not abuse its discretion in sentencing the defendant.
The court properly considered the defendant’s mental and physical disabilities in
that they bear on the defendant’s chances for reform, Laffey, 600 N.W.2d at 62,
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and the court’s duty to provide the maximum opportunity for rehabilitation of the
defendant, Iowa Code section 901.5. The same is true of the lack of communitybased programs appropriate for the defendant.
That lack is a proper
consideration because it bears on the defendant’s chances for reform and where
the court should place the defendant to provide him the maximum opportunity for
rehabilitation.
Neither consideration is improper.
sentences.
AFFIRMED.
We affirm the defendant’s
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