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State v. Gines

Court of Appeals of Iowa

March 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
DENISE LASAY GINES, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Thomas W. Mott, Judge.

         A defendant appeals her sentence after pleading guilty to theft in the third degree. AFFIRMED.

          Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          POTTERFIELD, Judge.

         Denise Gines appeals her sentence following a guilty plea to third-degree theft in violation of Iowa Code section 714.2(3) (2017). On appeal, Gines argues the court abused its discretion in failing to consider mitigating factors. We find the sentencing court did not abuse its discretion and affirm the sentence imposed.

         I. Background Facts and Proceedings.

         Gines stole $148 worth of clothing in June 2016. Gines was charged with an aggravated misdemeanor, enhanced because of her theft convictions in 2013 and 2014. At sentencing, the State recommended ninety days in jail because of her criminal history of thefts, and the court imposed a ninety-day sentence. Gines has thirteen theft convictions dating back to 1986. Gines also has a conviction for simple assault and assault with a weapon. She has served prison time and has been under parole and probation supervision.

         Gines asked the court for a suspended sentence and probation. Gines submitted letters from medical professionals documenting her health problems, including chronic obstructive pulmonary disease (COPD) and lung disease. Gines also submitted a letter from her social worker stating Gines had attended three appointments to work on kleptomania and mood issues and intended to continue therapy.

         Regarding its decision to sentence Gines to ninety days in jail, the court stated:

I'm sorry about your health conditions, Ms. Gines. I think that if programs were going to successfully deal with your theft activity- which is chronic, along with some other criminal activity, but this one involves one more in a long line of thefts-those programs would have worked already. You've been exposed to a lot of opportunity.
If something is needed other than you resolving not to commit theft anymore, then you would have-you would have taken advantage of those.
Stealing is a voluntarily activity, even though there's a lot of suggestion here that it's something beyond your control. But I don't know that that's so. You continually do it. If there-if it was a condition that needs to be treated, that's been dealt with. If, as counsel said, you succeeded on probation, that might mean that on some of your probations or paroles you didn't get revoked. All right. However, I don't think here your being ...

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