STATE OF IOWA, Plaintiff-Appellee, vs. MILTON ANGELO WELLS, JR., Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-719 / 09-0300
Filed October 7, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MILTON ANGELO WELLS, JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick
(plea hearing) and Mark J. Smith (sentencing), Judges.
Milton Angelo Wells Jr. appeals his sentence following his plea of guilty for
sexual abuse in the third degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney
General, Michael Walton, County Attorney, and , Assistant County Attorney, for
appellee.
Considered by Vaitheswaran, P.J., and Mansfield, J., and Schechtman,
S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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SCHECHTMAN, S.J.
Milton Angelo Wells Jr. appeals his sentence following a plea of guilty to
sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(c)(4)
(2009), a class C felony. Wells contends the district court abused its discretion in
imposing a sentence of confinement not to exceed ten years, alleging that
probation would have provided him a “better chance for rehabilitation.”
We
affirm.
I. Background Facts and Proceedings.
On the afternoon of September 23, 2008, nineteen-year-old Wells
encountered the victim, then fourteen, in the Bettendorf Public Library. Wells and
the victim were recent acquaintances from high school. They talked. Wells
asked the victim to have sex with him upstairs, on the second floor of the library.
The victim stated she was “afraid to say no,” and followed Wells upstairs. They
kissed and the victim followed Wells into a handicap stall in a restroom.
Urged by Wells, the victim removed her pants and underwear.
Wells
inserted his penis into her vagina, wearing a condom. Wells asked the victim to
perform oral sex on him. She complied. He thereafter resumed intercourse with
the victim until he ejaculated. The victim’s cell phone rang. She told Wells her
mother had arrived to pick her up.
At Wells’ direction, the two exited the
restroom and the second floor separately.
Wells was charged and pled guilty to sexual abuse in the third degree, in
violation of section 709.4(2)(c)(4). The sentencing hearing was held on February
19, 2009. Wells’ presentence investigation report recommended probation with
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supervision by the Sex Offender’s Treatment Program. The State did not make a
sentencing recommendation, per its plea agreement. Wells requested the court
to order probation to allow him a better chance for rehabilitation. In support of
that request, he asked the court to consider his age, current and future
education, his activity with his church, and his participation in classes at the
county jail after arrest that had assisted him with anger management,
responsibility, and accountability issues. The sentencing court rejected Wells’s
request for probation, and sentenced him to a term of incarceration not to exceed
ten years, with lifetime parole, pursuant to Iowa Code section 903B.1, once
released. Wells now appeals.
II. Scope and Standard of Review.
We review the district court’s sentencing decision which is within statutory
limits for abuse of discretion. Iowa R. App. P. 6.4; State v. Alloway, 707 N.W.2d
582, 584 (Iowa 2006). Sentencing decisions of the district court are cloaked with
a strong presumption in their favor. State v. Formaro, 638 N.W.2d 720, 724
(Iowa 2002).
“A sentence will not be upset on appellate review unless the
defendant demonstrates an abuse of trial court discretion or a defect in the
sentencing procedure, such as trial court consideration of impermissible factors.”
Id.
III. Merits.
Wells argues the district court abused its discretion in sentencing him to
prison, and that probation with supervision would have afforded him a greater
chance to achieve rehabilitation. Iowa Rule of Criminal Procedure 2.23(3)(d)
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requires a trial court to state on the record its reasons for selecting a particular
sentence. In weighing and considering all pertinent matters, the court should
consider “the societal goals of sentencing criminal offenders, which focus on
rehabilitation of the offender and the protection of the community from further
offenses.” Formaro, 638 N.W.2d at 724; see also State v. August, 589 N.W.2d
740, 744 (Iowa 1999).
The court should further consider “the nature of the
offense, the attending circumstances, the age, character and propensity of the
offender, and the chances of reform.” Formaro, 638 N.W.2d at 724.
The record reveals that although Wells does not have an extensive
criminal history, he does have a prior conviction for a violent crime (assault
causing bodily injury), occurring in 2007.
For that offense, Wells was given
probation, which he did not complete, probation was revoked, and he served 120
days in the county jail. At sentencing, the district court reviewed the presentence
investigation report, which contained information regarding Wells’ school and
church involvement, work history, age, family dynamics, financial history, living
arrangements, and criminal history. The report did not offer any reason for its
recommendation of probation.
The court also reviewed a letter from a
correctional officer detailing Wells’ cooperation and participation in group classes
at the jail.
During sentencing, the court noted Wells’ age and potential to be a
productive citizen.
The court, however, expressed its concern about Wells’
failure to reform after his prior conviction for a violent crime, and his failure to
comply with the probation imposed for that offense. As the court stated:
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Well, Mr. Wells, I’ve looked at your Presentence
Investigation and also the victim—or the official version, and the
problem that I have is that—in part—is that this is not your first
offense. This is your second offense of a crime of violence. You
had an assault causing bodily injury charge which you failed on
probation in . . . 2007. You failed probation in December of 2008,
at which time a period of 120 days in jail was imposed.
This is another crime of violence. Sex abuse is a violent
crime. And I—based on the facts and circumstances surrounding
the events in this case as well as your prior criminal history and the
fact that this is a crime of violence again indicates to the Court that
a period of incarceration is warranted, and, again, that’s something
that I’m—I do with reluctance given your age and also the fact that
you appear to be an intelligent person. You have a lot to offer if
you choose to abide the law. Unfortunately, you’ve chosen
otherwise, and one of my duties as a judge is to protect the
community and placing you out of the community is something that
I feel will protect the community, so based on those prior
statements as to the reasons as well as that reason, the Court will
impose a period of incarceration.
We conclude the district court properly considered Wells’ chance for
rehabilitation, as well as the other appropriate factors, when entering his
sentence. The court considered the nature of the offense (“crime of violence”),
the attending circumstances (“based on . . . circumstances surrounding the
events”), age (“given your age”), character and propensities (“you appear to be
an intelligent person. You have a lot to offer if you choose to abide the law”), and
chances of reform (“your second offense of a crime of violence . . . a crime of
violence again”). See State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979).
The punishment fits the person and the crime.
Id.
It also addresses
rehabilitation and the need to protect the community. The court only needed to
explain the reasons for its sentence and was not obligated to explain the reasons
for rejecting probation. State v. Ayers, 590 N.W.2d 25, 28 (Iowa 1999).
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The record reflects that the court tersely addressed all the relevant factors,
and further reveals the concerns which motivated the court to select the sentence
imposed.
It is not an abuse of discretion to refuse probation though
recommended by the presentence investigation. State v. Taylor, 490 N.W.2d
536, 539 (Iowa 1992). Sentencing decisions carry a presumption of regularity.
State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001). As such, the burden is on the
defendant to affirmatively prove the sentencing court relied on improper evidence
or otherwise abused or failed to exercise its discretion. Id. We conclude Wells
has failed to do so. We affirm.
AFFIRMED.
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