from the Iowa District Court for Dubuque County, Thomas A.
defendant appeals the sentence imposed following his guilty
C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
Dontae Tyrone Lemon appeals following his guilty pleas to
burglary in the third degree and assault with the intent to
commit sexual abuse, in violation of Iowa Code sections
709.11(3) and 713.6A(1) (2016). He asserts the district court
abused its discretion in imposing, rather than suspending,
the prison term on his convictions. He also claims the court
erred in failing to articulate reasons for running the
nonbinding plea agreement between Lemon and the State called
for a joint sentencing recommendation of suspended concurrent
sentences, with probation and placement at a residential
correctional facility for one year or until maximum benefits
are achieved. The presentence investigation (PSI) report
instead recommended incarceration on both convictions with
the sentences to run consecutively. At the sentencing
hearing, the district court rejected the parties'
sentencing recommendation and instead imposed a five-year
term and a two-year term of incarceration on the convictions
and ordered the sentences to run consecutively. In reaching
this decision, the district court stated:
Okay. Let me say a few things. I read through all three of
these files on Friday, and I made some notes about some
things that I thought were of some significance. Before I get
to that, I understand [defense counsel's] argument. He
makes a very good argument, and it's pretty convincing,
but it is hard to say to the court with a twenty-one-year-old
who does have a conviction for possession of controlled
substance, which is an indictable, who does have two
convictions of domestic abuse assault, which are both
indictable, who has a conviction for operating a motor
vehicle without the owner's consent, which is an
indictable, and who while on probation comes in and commits a
felony offense and an aggravated offense on two separate
dates, two separate occasions, it's difficult with that
background to come in and say, I deserve a chance on
When I read through the PSI and I read through these files, I
come to the conclusion that probation doesn't work for
Mr. Lemon and hasn't worked up to this point in time. His
sentencing order on a domestic second offense was October 7
of 2015. The date that he committed the assault with intent
to commit sexual abuse was May 1st of '16, so about six
or seven months after he'd been on probation for a
domestic second. The date of the burglary third is June 7 of
2016, a month apart from each other, two separate acts, two
completely separate incidents involving different people,
both criminal offenses, both while he's on probation.
And he does have a lot of simple misdemeanors on his record.
I understand that. And to be honest, I don't consider the
simples all that much. They don't weigh very heavily in
my decision. But the other things do, and in particular, when
you're on probation and you commit multiple new criminal
offenses while you're [on] probation, to me that is
significant. It really is.
. . . .
So what I'm saying is Mr. Lemon has failed on probation.
To come in and ask for again another chance on probation
isn't reasonable. I'm not going to give him the
chance on probation.
decision of the district court to impose a particular
sentence within the statutory limits is cloaked with a strong
presumption in its favor, and will only be overturned for an
abuse of discretion or the consideration of inappropriate
matters." State v. Formaro, 638 N.W.2d 720, 724
(Iowa 2002). An abuse of discretion occurs only when
"the decision was exercised on grounds or for reasons
that were clearly untenable or unreasonable."
Id. Upon our review of the record, we find no abuse
of discretion in the district court's decision to ...