STATE OF IOWA, Plaintiff-Appellee, vs. EDWARD DEWAYNE NEWTON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-912 / 09-0148
Filed December 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EDWARD DEWAYNE NEWTON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,
Judge.
Defendant appeals the sentences imposed upon his conviction of four
counts of delivery of controlled substances. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John P. Sarcone, County Attorney, and Daniel C. Voogt, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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MANSFIELD, J.
Edward Newton appeals from the judgment and sentence entered
following his guilty pleas to one count of delivery of controlled substance (cocaine
salt) in violation of Iowa Code section 124.401(1)(c)(2)(b) (2007), and three
counts of delivery of controlled substance (cocaine base) in violation of section
124.401(1)(c)(3). Newton contends the district court abused its discretion by
failing to give specific reasons for imposing consecutive sentences.
After
reviewing the record, we affirm the sentence of the district court.
I. FACTS AND PROCEDURAL HISTORY.
According to the minutes of testimony, on four separate occasions,
Newton sold or provided crack cocaine or cocaine salt to an undercover police
officer and a cooperating individual in Des Moines between July 31, 2008, and
August 13, 2008. At the time the offenses were committed, Newton was on
parole for a forgery offense he committed in 2003.
On September 26, 2008, the State charged Newton with four counts of
delivery of controlled substances. Each charge is a class “C” felony and carries
a punishment of no more than ten years incarceration.
See Iowa Code
§§ 124.401(1)(c), 902.9(4).
On November 26, 2008, Newton pled guilty to all four counts. At the plea
hearing, the prosecutor indicated that if Newton agreed to serve two of the four
counts consecutively, he would support that, but if Newton argued for a lesser
sentence, the State would be free to argue for any applicable sentence, up to the
maximum allowed under the law. Newton proceeded to plead guilty.
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Following the plea, Newton filed pro se motions to discharge his attorney
and to revoke his guilty pleas. New counsel was appointed, and on January 9,
2009, the district court denied Newton’s motion to withdraw his guilty pleas. The
district court then proceeded to sentencing.
At sentencing, the State requested the maximum punishment be imposed,
i.e. four consecutive ten-year sentences. Newton’s counsel agreed that it was
“reasonable to recommend incarceration,” but argued that the four sentences
should run concurrently. He specifically stated that his client’s “recommendation
or his request to me was to ask the court to impose four ten-year sentences and
to run them concurrently, and that’s what he’s asked me to present to the court
and I shall do so.”
In making its sentencing decision, the district court stated:
I read the [presentence investigation report]. I am familiar
with the defendant’s age, his prior record of convictions and
deferments, his employment and family circumstances, the nature
of the offenses that were committed here, [and] harm to the victim.
As far as I know, there was no weapon of force involved in
any of these offenses. The defendant’s financial circumstances,
the defendant’s need for rehabilitation and potential for that—and,
in particular, what I would cite with regard to that is that Mr. Newton
has had two what I regard as extraordinary opportunities for
treatment. One in the in-jail treatment program and the second with
the drug court program—the necessity for protecting the community
from further offenses by the defendant and others and the other
factors that are set forth in the presentence investigation report.
The district court commented on Newton’s unsuccessful attempt to withdraw his
guilty plea, stating among other things that he would not hold that against
Newton for sentencing purposes. Then, the district court pronounced Newton’s
sentence to be ten years in prison on each of the four counts, with two of the
counts to be served consecutively, for a total of twenty years. The court further
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stated that the sentences would be consecutive to his forgery sentence. As the
court explained, Newton was on parole for forgery when he committed the
cocaine distribution offenses, so his parole is revoked as a matter of law. See
Iowa Code § 908.10. The court added that there is a statutory presumption the
new sentences run consecutive to the term imposed for the parole violation, see
id., and “there’s certainly no reason here that it should not be consecutive.”
Newton now appeals the sentences imposed by the court. His sole basis
for appeal is that the district court failed to give reasons for imposing consecutive
sentences.
II. ANALYSIS.
Where a challenged sentence does not fall outside the statutory limits, we
review the trial court’s decision for abuse of discretion. State v. Thomas, 547
N.W.2d 223, 225 (Iowa 1996). “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.” Id.
Under Iowa Rule of Criminal Procedure 2.23(3)(d), “[t]he court shall state
on the record its reason for selecting the particular sentence.” The district court
must also give its reasons for imposing consecutive, rather than concurrent,
sentences. State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996). “Although the
reasons need not be detailed, at least a cursory explanation must be provided to
allow appellate review of the trial court’s discretionary action.” State v. Jacobs,
607 N.W.2d 679, 690 (Iowa 2000).
There is no question that the district court gave reasons for the sentence it
imposed. These included the age of the defendant, the defendant’s prior record
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of convictions and deferments, employment and family circumstances, and the
nature of the offense committed. In addition to these factors, the district court
cited two “extraordinary opportunities” for drug treatment and Newton’s lack of
success in those prior rehabilitation efforts.
Newton argues, however, that
because the district court did not specifically state on the record something like,
“These are the reasons why I am making two of the sentences run
consecutively,” the sentencing failed to satisfy the requirements of rule
2.23(3)(d). We disagree.
Based on the sentencing colloquy, it is apparent to us and would have
been apparent to the parties that the foregoing were the reasons for the
consecutive sentences on two counts.
The fighting issue at the time of
sentencing was the extent to which the sentences would run concurrently or
consecutively. Newton’s counsel asked for all sentences to be concurrent; the
State asked for all sentences to be consecutive. The district court set forth the
factors it deemed relevant, then ordered two of the sentences to run
consecutively, and the others concurrently. This is enough.
In short, this is a case where the district court gave reasons, and it was
“reasonably clear” they were the reasons for the consecutive sentences. See
State v. Carberry, 501 N.W.2d 473, 477-78 (Iowa 1993) (holding that even an
“extremely terse” statement of reasons, which did not specifically refer to the
district court’s decision to impose consecutive sentences, was sufficient, where it
was “reasonably clear” these were the reasons for consecutive sentences); see
also State v. Keopasaeuth, 645 N.W.2d 637, 641-42 (Iowa 2002) (where the
State argued for consecutive sentences, and reasons for the sentence “were
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articulated,” the reasons were sufficient, even though the judge did not
specifically state they were reasons for making the sentences consecutive).
After consideration of the record, we conclude the district court provided
sufficient reasons for imposing consecutive sentences. Accordingly, we affirm.
AFFIRMED.
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