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State v. Kendall

Court of Appeals of Iowa

December 5, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
JOHN PHILLIP DEAN KENDALL, Defendant-Appellant.

Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.

John Kendall appeals from his consecutive sentences for two counts of sexual abuse in the third degree and one count of lascivious acts with a child.

Mark C. Smith, State Appellate Defender, and Maria Ruthenberg, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary Triick, Assistant Attorney General, Michael J. Walton, County Attorney, and Melisa Zaehringer, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Danilson, JJ.

POTTERFIELD, J.

John Kendall appeals from his sentence for two counts of sexual abuse in the third degree and one count of lascivious acts with a child. He argues his counsel was ineffective in failing to object to the presentence investigation and the district court abused its discretion in imposing his sentence. We affirm, finding Kendall was provided effective assistance and the court did not abuse its discretion in imposing his sentence.

I. Facts and proceedings.

John Kendall pleaded guilty to two counts of sexual abuse in the third degree and one count of lascivious acts with a child pursuant to a plea agreement. Sentencing was held January 31, 2013. The State requested the court impose a sentence of thirty years of incarceration because each charge involved a separate victim, the crimes were committed while Kendall was on probation, and he had previously been granted the services of community-based programs but nothing changed his behavior. Kendall's counsel argued concurrent sentences were appropriate given Kendall's age and his lack of a previous imprisonment, he was the victim of sexual abuse, and he had not received the structure and assistance necessary to address his mental health and substance abuse problems. A victim's mother also testified at the sentencing hearing. The court was provided with a presentence investigation report, which it considered in sentencing. Kendall was provided with a copy of the report, and when asked whether there were any additions or corrections to the report, his counsel replied there were not.

Kendall was sentenced to ten years on each count, to be served consecutively. In making its decision, the court stated:

Mr. Kendall, it is my duty under the law to review what is available to me in terms of community resources and to determine what the appropriate rehabilitative plan for you would be, and to also consider that the public must be protected. In doing so, I am looking at the seriousness of the crime, the effect that this crime has had upon members of the community, and what is available to the—in this community to assist you in this process.
Mr. Kendall, you were on probation while these crimes were occurring. . . . The proposition that they occurred while you were on probation and knew that you should have been minding your Ps and Qs and doing everything that you were supposed to do according to the law weighs heavily on the Court's mind.
Again, because you were on probation, again because you had three separate victims, to protect the community from such predations, it is the sentence of this Court that these sentences will run consecutively.
Another reason for the consecutive sentence is that prison will provide you with the maximum opportunity for rehabilitation. Another reason is to punish you. Yet another reason is both specific ...

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