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State v. Ganaway

Court of Appeals of Iowa

May 16, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
BRANDON T. GANAWAY, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

         Brandon Ganaway appeals, claiming the district court abused its discretion in sentencing him.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., Mullins, J., and Mahan, S.J. [*]

          MAHAN, Senior Judge.

         Brandon Ganaway appeals, claiming the district court abused its discretion in sentencing him. We discern no abuse of discretion in the district court's sentencing decision, and we affirm the court's order. We remand the case to the district court so that it may issue a nunc pro tunc order to correct the clerical error in the written order with regard to the imposition of fines.

         I. Background Facts and Proceedings

         Brandon Ganaway pled guilty to possession of a controlled substance (methamphetamine) and delivery of a controlled substance (methamphetamine). See Iowa Code § 124.401(1)(c)(6) (2016). The district court entered an order allowing Ganaway, who had a criminal record dating back to 1994, to attend inpatient substance abuse treatment at the Salvation Army pending sentencing. Ganaway was terminated from the Salvation Army after five days for violation of various rules, which prompted his re-arrest.

         The department of corrections' presentence investigation report (PSI) recommended Ganaway be sentenced to prison. The PSI preparer opined Ganaway "has shown he is not willing to become a law-abiding citizen and/or comply with the current conditions of supervision." At the sentencing hearing, the prosecutor "acknowledge[d] that we're dealing with a defendant [who] has a criminal history that is colored in terms of criminal offenses and opportunities and dispositions." The prosecutor observed Ganaway "struggled following rules, being where he was supposed to be, being on time, being up front with his probation officer, " and if he "cannot do that, that tells the State that he will not be successful on probation and leaves the State with no other choice [than] to recommend incarceration." Ganaway addressed the court at length with regard to his sentence, stating in part, "I didn't do anything in [the Salvation Army] . . . to be kicked out of there like that. . . . I was kicked out of [t]here for a reason that I feel was really minute." He requested "an opportunity to at least get some help, to go to treatment."

         The district court sentenced Ganaway to an indeterminate term not to exceed ten years on each count, the terms to run consecutively, and imposed the one-third mandatory minimum for each count. The court stated its reasons for the sentence as follows:

For the past [twenty-three] years you have done nothing productive. You were in trouble as a youth. You had problems with the law in '96, '98, 2001, 2000, 2004, [2005], [2007], [2010], [2011], [2012], on and on and on. The record reflects the Court has been extremely lenient with you, repeatedly giving you probations, which you repeatedly failed. Even when you were sent to prison, you were given parole, and you failed at that. This court took a chance on you. I listened to what your lawyer said. He told me you were absolutely sincere.
. . . . People, in my experience, who really want treatment- and I've been doing this for [twenty-two] years, and I've presided over the drug court for two years, and I have placed people in Bridges again and again and again, and I've removed them from Bridges numerous times. People who really want treatment are desperate. Desperate. They will do anything. They won't blame others. They won't throw other people over the bus-under the bus for their own failures. You were trusted. You were trusted, and you failed. And now you come in here this morning and you claim it's someone else's fault. That's-that is a-in my view, that is a clear inability on your part to understand what's going on here.
Your lawyer tells me you left the facility because it was faith-based and that just doesn't fit with you. You didn't say anything about that. The PSI didn't say anything about that. There's nothing in the PSI that talks about you didn't gain any traction at Salvation Army because someone unfairly treated you about that.
I should think that a drowning man would grab onto anything and cling to it, and that's what Salvation Army was for you. That was your last clear chance, and to say I'm disappointed is a gross understatement. I took a chance on you. I trusted you, and I listened to what your lawyer said, and you blew it. You wasted it. That was your last-break opportunity at this stage of your ...

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