from the Iowa District Court for Polk County, Jeffrey D.
Dearden appeals, claiming the district court abused its
discretion in sentencing him. AFFIRMED.
Kenneth J. Weiland Jr. of Weiland Law Firm, P.C., Urbandale,
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., Doyle, J., and Mahan, S.J.
County jury found Brian Dearden guilty of possession of
marijuana, a serious misdemeanor, in violation of Iowa Code
section 124.401(5) (2015); conspiracy to deliver marijuana, a
Class D felony, in violation of section 124.401 (1)(d); and
failure to possess a tax stamp, a Class D felony, in
violation of section 453B.12. The maximum sentence for counts
II and III is a term of incarceration not to exceed five
years. See Iowa Code §§ 902.3,
902.9(1)(e). The department of corrections' presentence
investigation report recommended suspending Dearden's
sentence. At the sentencing hearing, the prosecutor
acknowledged Dearden had "little, if any, criminal
history" but recommended that Dearden "should go to
prison, and he should not be granted any sort of opportunity
for probation" in light of the evidence presented
against him at trial regarding the extent of the drug
operation he was involved with.
district court sentenced Dearden to concurrent terms of
incarceration on all three counts, producing a five-year
term. The court stated its reasons for the sentence as
I've had the chance to look at the presentence
investigative [PSI] report, consider the arguments and
statements made by the parties and the couple of witnesses.
Obviously, I sat through the trial. The [PSI] report writer
recommends probation, and I think that based upon a paper
review, so to speak, Mr. Dearden would look like a good
candidate for probation. His criminal history is limited. He
didn't have a prior conviction-well, prior conviction for
eluding, I think, was a number of years before. He's
worked in the community. He's got family that he's
close to in the community. All these things would weigh in
favor of probation.
The one thing I would note, though, is that the probation-or
the PSI writer was not at trial, and I was. And one thing
that's very important for me in order to show
rehabilitation is, do you accept responsibility. And I see it
all the time where people come in, fall on their sword, and
they say, you know what, I did exactly what the State alleges
that I did, and my hope is to improve myself and get better.
And that plays pretty well for the Court. . . . But I do
think that when you get on the stand and in view of the Court
make statements under oath that are dishonest, that is not
only failure to accept responsibility, it's taking it a
step further. And Mr. Dearden got on the stand, and he said,
I didn't know that I had marijuana in my house, and that
was his testimony. And as [the prosecutor] aptly displayed
during the course of cross-examination, Mr. Dearden was very
well aware there was marijuana in that house because his cell
phone was sitting on top of the safe that held fifteen or
sixteen pounds of marijuana. And right beside that safe was a
duffel bag that was open that had three or four pounds of
Moreover, Mr. Dearden had made statements to police during
the course of the search warrant execution indicating that he
very well understood that there was marijuana in his house.
He told an officer . . . during the course of interview that
he knew that there was a bag downstairs that had about three
to five pounds of marijuana. He stated that he was holding
the marijuana for Elijah Campbell and he was getting paid for
it. He was warehousing it for him. And he indicated that he
helped Elijah Campbell package the drugs. And all these
statements that Mr. Dearden made to officers were backed up
and corroborated by all the other evidence in the case. . . .
Now, where that gets us, as far as what sentence should be,
is something that I need to think through. My concern is that
with a person who does not accept responsibility and takes
the steps that I've indicated, that if you put a person
on probation under those circumstances, essentially, you
could enable the person to think that, you know, I can get by
with this. And under those circumstances that's true,
that's more likely to happen again. Then those
circumstances [defense counsel] just spoke about, what's
the opportunity for rehabilitation and what do we need to do
to protect the public weighs in favor of incarceration.
Because in order to make the point, to drive the point home,
incarceration will do that. Whereas in a case like this, I
don't think probation will.
For that reason, for all those reasons that I have mentioned,
and one other thing I need to mention, the scope of this
operation. This was an operation that was a large operation.
There's twenty pounds of marijuana which is large by any
account. It was ongoing for a period of time. Exactly how
long, we're not sure. But it wasn't just a one-night
thing. It was something that was going on for a month or two
months, or something along that line. That would all be
consistent with what the evidence is. I do consider that to
be a serious offense. I know this is a Class D felony, but
with regard to the range of amounts of marijuana and
seriousness . . . with regard to the size of operation,
that's on the higher end of that particular- of those
particular offenses. So for those reasons that I have
mentioned, the Court is going to deny probation and require
review a district court's sentencing decision either for
abuse of discretion or for a defect in sentencing procedure,
such as the district court considering impermissible
sentencing factors. See State v. Formaro,
638 N.W.2d 720, 724-25 (Iowa 2002). Where improper factors
are considered, a sentence must be vacated and ...