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State v. Horak

Court of Appeals of Iowa

September 27, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
WENDY LYNN HORAK, Defendant-Appellant.

         Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

         The defendant appeals her sentences. AFFIRMED.

          Gerald J. Kucera, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., Doyle, J., and Blane, S.J. [*]

          BLANE, Senior Judge.

         Wendy Horak was sentenced to a term of incarceration not to exceed five years for her convictions for forgery and gathering where controlled substances are used and possessed (methamphetamine). At the same sentencing hearing, the court revoked Horak's probation in two additional cases and imposed the original sentences: five years for forgery and ten years for money laundering. The court ordered the sentences resulting from the revoked probation to run concurrent to each other but consecutive to the new sentences, for a total term of incarceration not to exceed fifteen years.

         Horak appeals, claiming the district court failed to provide an adequate explanation for imposing consecutive sentences using the pertinent sentencing factors and reached its decision by relying on improper factors. More specifically, Horak complains the court imposed consecutive sentences because of "the message it sends, " which she maintains is neither an appropriate sentencing consideration nor an adequate reason.

         "Our review of a sentence imposed in a criminal case is for correction of errors at law." State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). "We will not reverse the decision of the district court absent an abuse of discretion or some defect in the sentencing procedure." Id. "A district court abuses its discretion when it exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable. A district court's ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016) (citation omitted).

         When imposing the sentences, the court stated the following:

Now, the State is recommending that these two sentences run concurrent to each other but consecutive to your other sentences. Again, based upon your criminal history and your conduct, I don't think that running all of these sentences consecutively is out of line. However, I'll go with the State's recommendation on these new charges and run these two five-year sentences concurrently with each other, but I do think that they should be consecutive to your prior sentences because, again, being on probation and being given several chances is not a license to go out and keep committing crimes, and that's exactly what you've done here. And to do anything other than give you a consecutive sentence for these new offenses, to me, sends the wrong message to you and the wrong message in general.
The consecutive sentences are warranted because these are new offenses, and the fact that they were done when you were on probation certainly heightens the seriousness in my mind. And, again, I think they-these-both of these new ones do warrant to be run consecutive with each other as well, but I'm going with the State's recommendation and running them concurrently. So you're going to prison for a total of an indeterminate term not to exceed 15 years.
Now, on the flip side of this, if you are sincere with your newfound motivation to make good, then you're going to get a chance to do that. Prison will give you some programs to deal with that and the Parole Board will take all that into account. I'll certainly recommend to the Parole Board that they consider all possible avenues and benefits that they have at their disposal and under their jurisdiction, and if you earn the right to be paroled, then you should do that.
And I know you've been down this road before and you had a chance at least once in the past where you were paroled and had that revoked, but it looks like your-if your current motivation continues, then ...

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