from the Iowa District Court for Scott County, Stuart P.
defendant appeals his sentences following his convictions for
theft in the third degree and forgery. AFFIRMED.
C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
Linnaberry appeals his sentences following his convictions
for theft in the third degree and forgery. He claims the
district court abused its discretion when it denied his
request for probation, which would have enabled him to enter
a halfway house and obtain treatment for his addiction to
drugs. We will not reverse the sentence imposed absent an
abuse of discretion or some defect in the sentencing
procedure. See State v. Formaro, 638 N.W.2d 720, 724
(Iowa 2002). When the sentences imposed are within the
statutory limits, they are "cloaked with a strong
presumption in" their favor. Id.
Linnaberry pled guilty to third-degree theft and forgery. As
part of the plea agreement, the State did not pursue the
habitual offender sentencing enhancement and another case was
dismissed. Each side was free to advocate for the sentence
they thought most appropriate. The State recommended the
court sentence Linnaberry to consecutive five-year and
two-year sentences. Linnaberry urged the court to sentence
him to probation; he noted he had been in jail for
approximately 120 days leading up to sentencing and during
that time he had completed an anger-management course. He
claimed his issues with substance abuse were the catalyst for
his lengthy criminal history, and he maintained he was ready
to address those issues at the Center for Alcohol and Drug
Services, where a bed was then available.
district court sentenced Linnaberry to a term of two years
for theft in the third degree, see Iowa Code
§§ 714.2(3) ("Theft in the third degree is an
aggravated misdemeanor."), 903.1(2) ("When a person
is convicted of an aggravated misdemeanor . . . the maximum
penalty shall be imprisonment not to exceed two
years."), and five years for forgery, see id.
§§ 715A.2(2)(A) ("Forgery is a class
'D' felony . . . .), 902.9(e) ("A class
'D' felon, . . . shall be confined for no more than
five years."). The court ordered the two sentences to be
served concurrently. The court stated:
The Court has read the [presentence investigation] PSI, and I
do not give any consideration in the criminal history section
of the PSI to any entries for which there is neither an
admission of guilt nor a conviction.
That being said, the Defendant's criminal history is
extensive. In particular, it is-there are numerous low-level
traffic offenses. The offenses in and of themselves
individually do not warrant consideration, but the sheer
volume of them is such that it indicates the Defendant has a
significant difficulty obeying the rules of society.
In addition, the Defendant has previously received almost
every non-prison related program available to a Defendant in
these matters. He has-multiple times he has violated
probation and been sentenced.
He has more than one failure to appear. They may arise out of
the same incident. The Court has assumed that they did, but
any failure to appear warrants consideration.
He has previously been incarcerated, and as I said, he has
previously been granted probation which he has failed to
complete, and ...