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State v. Cary

Court of Appeals of Iowa

February 5, 2014

STATE OF IOWA, Plaintiff-Appellee,
v.
JAMES BLAKE CARY, Defendant-Appellant

Editorial Note:

This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.

Appeal from the Iowa District Court for Des Moines County, John M. Wright, Judge. A defendant appeals his sentence following his guilty pleas.

Mark C. Smith, State Appellate Defender, and Rachel C. Regenold, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Lisa K. Schaefer and Tyron Rogers, Assistant County Attorneys, for appellee.

Considered by Vogel, P.J., and Tabor and McDonald, JJ. Tabor, J., concurs; McDonald, J., dissents.

OPINION

VOGEL, P.J.

James Blake Cary appeals the sentence imposed following his guilty pleas to one count of robbery in the second degree and two counts of burglary in the third degree. He claims the court considered improper sentencing factors when it decided to run the two counts of burglary concurrent to each other but consecutive to the robbery count and consecutive to the sentences he was already serving. He claims the court considered an unproven offense when it incorrectly recited his criminal history and improperly considered the length of time he would serve on his sentence. We find no abuse of the trial court's discretion and affirm Cary's sentence.

I. BACKGROUND FACTS AND PROCEEDINGS.

At sentencing, pursuant to the plea agreement, the State remained silent as to its recommendation for imposing either consecutive or concurrent sentences. Cary's attorney argued the sentences should be concurrent to each other and concurrent to the sentences Cary was already serving on unrelated charges. While acknowledging the mandatory seventy-percent minimum on the robbery charge, counsel " strongly urge[d] the court to reach the conclusion that that seven years is going to be more than adequate to take care of Mr. Cary's problems, to adequately protect the community." Counsel went on to say that if the court ran the sentences concurrently, he reasonably believed that Cary would " get out of prison when he's approximately twenty-eight years old." Counsel noted that running the sentences consecutively would likely " add two to three years onto the sentence" and believed " seven years [was] more than adequate to cover the offenses that [Cary] pled guilty to and that he's taking responsibility for." Likewise, during his allocution, Cary asked the court " to be nice, because I feel like a seven-year sentence is a long time" and that was " adequate."

The court in imposing the sentence spent a great deal of time reviewing the factors it considered in reaching its sentencing decision. The court noted the mandatory minimum sentence of seven years on the robbery conviction pursuant to Iowa Code section 902.12 (2011). The court considered the statements made by Cary's attorney, along with Cary's statement. Cary's age, family support, criminal history, lack of income or stable work history, education, history of drug abuse, and potential for rehabilitation were all considered by the court. In reciting Cary's criminal history, the court stated:

You are already serving sentences, as your attorney pointed out, for Forgery, a class D felony. You have convictions for Burglary, for Attempted Burglary, Theft, Domestic Abuse, Harassment, and you have just been a menace to your family and to the community for quite a few years even though you're only 21 years of age.

(Emphasis added.) Following its pronouncement of the sentence, Cary's counsel asked the court for a more specific recitation of the reason why the sentences would run consecutively. The court, in response, stated:

As I've already stated, your client has a serious history of criminal convictions. It is a very serious offense for which he was convicted of the Second Degree Robbery. These are serious offenses of Burglary in the Third Degree. The Court has given some consideration to the length of time Mr. Cary will serve on these sentences and has decided to run two of the class D felonies concurrent. Those will run consecutively, as I indicated. The Court also takes into consideration everything ...

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