from the Iowa District Court for Polk County, Mary Pat
Johnson appeals the district court's imposition of
M. Armbrust of Brown, Kinsey, Funkhouser & Lander,
P.L.C., Mason City, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
Johnson has a lengthy criminal record dating back to 1990.
Until 2015, his convictions in Iowa were for offenses that
were, at most, aggravated misdemeanors, including two
serious-misdemeanor convictions for possession of a
controlled substance, in 2004 and 2014, respectively.
March 2015, Johnson was charged in case number FECR284624
with two felonies: first-degree theft and felony eluding.
See Iowa Code §§ 321.279(3), 714.2(1)
(2015). Johnson pled guilty to felony eluding as charged and
to the lesser offense of operating a vehicle without the
owner's consent, an aggravated misdemeanor. See
id. §§ 321.279(3), 714.7. Johnson was
sentenced to five years on the eluding conviction and two
years on the operating-without-consent conviction, ordered to
be served concurrently, but the sentences were suspended and
Johnson was placed on probation for two years. As part of his
probation, Johnson agreed to participate in a
2016, law enforcement officials were dispatched to a location
concerning a dispute, and Johnson was one of the individuals
at the location. At that time, a warrant was out for
Johnson's arrest because he had been dismissed from the
treatment program in violation of his probation agreement.
Johnson was arrested and searched, and cocaine,
methamphetamine, and marijuana were found on his person.
Johnson was subsequently charged as a habitual offender in
case number AGCR293160 with three counts of possession of a
controlled substance, third offense, in violation of sections
124.401(5) and 902.8.
AGCR293160, Johnson pled guilty to one count of possession of
a controlled substance, third offense, without the
habitual-offender enhancement. This offense is a class
"D" felony, which carries a maximum sentence of
five years. See id. §§ 124.401(5),
902.9(1)(e). As part of the plea agreement, both the State
and Johnson agreed Johnson violated his probation agreement
in FECR284624, and as a result, probation would be revoked
and his previously suspended, concurrent sentences would be
imposed. However, the State was free to argue that
Johnson's sentence in AGCR293160 be imposed consecutively
to his sentence in FECR284624, whereas Johnson argued for
concurrent sentences. After a hearing, the district court
ordered Johnson's five-year sentence in AGCR293160 be run
consecutively to his five-year sentence in FECR28462, for a
total period of ten years.
now appeals the district court's decision to run his
sentences consecutively and not concurrently. He asserts the
court's sentencing decision "does not afford him the
maximum opportunity to rehabilitation, " asserting a
concurrent sentence would allow him an opportunity to enter
treatment sooner. He also notes his crime was not violent,
and, as his argument goes, "therefore lacks the
seriousness that would require an extended prison
sentence." Additionally, he suggests the court's
sentencing decision was "an attempt to thwart a
perceived risk of early parole."
decisions within the statutory limits will not be reversed
"absent an abuse of discretion." State v.
Letscher, 888 N.W.2d 880, 883 (Iowa 2016); State v.
Seats, 865 N.W.2d 545, 552 (Iowa 2015). An abuse of
discretion occurs where the district court "exercises
its discretion on grounds clearly untenable or to an extent
clearly unreasonable, " meaning the court's ground
or reason is "not supported by substantial evidence or .
. . is based on an erroneous application of the law."
State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016).
"We give sentencing decisions by a trial court a strong
presumption in their favor." State v.
Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). "In
exercising discretion, the district court must 'weigh all
pertinent matters in determining a proper sentence, including
the nature of the offense, the attending circumstances, the
defendant's age, character, and propensities or chances
for reform.'" State v. Thacker, 862 N.W.2d
402, 405 (Iowa 2015) (citation omitted).
our review of the record, we find no abuse of discretion by
the district court in determining the sentences should be run
consecutively. Here, the district court explained it was
running the sentence consecutively to the sentence in
based on the separate and serious nature of the offense. It
is . . . also because of [your] prior criminal history, which
is fairly extensive . . . . It's based on your age, your
substance-abuse history, [and] the nature of the offense
committed. Those are some of the things ...