from the Iowa District Court for Scott County, Nancy S.
Rush Brantley appeals his sentence following a plea to
possession of a controlled substance arguing that the
district court erred by imposing a suspended sentence with
probation rather than a deferred judgment.
G. Hoover of Blair & Fitzsimmons, PC, Dubuque, for
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
Tabor, J., takes no part.
VAITHESWARAN, PRESIDING JUDGE.
Collin Rush Brantley pled guilty to possession of a
controlled substance (cocaine base) with intent to deliver,
in violation of Iowa Code section 124.401(1)(b)(3) (2016)
(Count I). The district court sentenced him to a
prison term not exceeding twenty-five years, imposed a
mandatory minimum term of ten years, but suspended the
sentence and placed him on probation for five years. On
appeal, Rush Brantley contends "the district court erred
by refusing to grant a deferred judgement to [him], and
instead granting a suspended sentence with a mandatory
minimum if revoked." Because the district court's
sentence fell within statutory limits, our review is for an
abuse of discretion. State v. Valin, 724 N.W.2d 440,
443-44 (Iowa 2006).
district court considered the defense's request for a
deferred judgment as well as Rush Brantley's relative
youth. The court acknowledged Rush Brantley did not
"have the same opportunities that other folks had to
learn some things as a young man." But the court found
the need for "some accountability," given previous
time served in prison and unsuccessful efforts at
rehabilitation. The court concluded this was not "an
appropriate case for a deferred judgement" and denied
"that request because of the seriousness of the offense
and the criminal history." We discern no abuse of
discretion in the court's statement of reasons.
reaching this conclusion, we have considered Rush
Brantley's contention that the presentence investigation
report incorrectly stated he was ineligible for a deferred
judgment. The prosecutor addressed this error at the outset.
He stated, "Your Honor, the presentence investigation is
incorrect about Mr. Rush Brantley's status
vis-à-vis a deferred judgement. He is, in fact,
eligible." Because the error was corrected before the
court imposed sentence, we find the argument unpersuasive.
similarly unpersuaded by Rush Brantley's suggestion that
the district court improperly relied on dismissed charges.
See State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa
1998) ("A court may not consider an unproven or
unprosecuted offense when sentencing a defendant unless (1)
the facts before the court show the accused committed the
offense, or (2) the defendant admits it."). The
prosecutor expressly exhorted the court not to consider the
dismissed charges, stating:
[Rush-Brantley] does not have at this time any prior felony
convictions. He did have a felony conviction . . . which was
reversed on appeal and later dismissed and he had a felony
conviction . . . that was set aside in a
post-conviction-relief action after his arrest in this case.
So he doesn't have any prior offenses which would
disqualify him from consideration for a deferred judgement.
in summarizing Rush Brantley's criminal history, the
prosecutor reiterated that a "robbery charge was
overturned on appeal and dismissed, and of course that aspect
of that incident is not relevant to these proceedings."
He stated a second conviction "was set aside in post
conviction relief and again does not bear on the sentencing
as far as it being a conviction." The district court did
not rely on either offense in sentencing Rush Brantley.
we have considered Rush Brantley's assertion that the
district court should have declined to impose a ten-year
mandatory minimum sentence in light of a recent legislative
change that "allow[s] a court to reduce the mandatory
minimum from one-third of the maximum, to one-half of
one-third." See Iowa Code §124.413(3)
(2017). The change took effect on July 1, 2017,
after the date of the crime to which Rush Brantley pled
guilty. Nonetheless, the prosecutor informed the district
court of the statutory amendment and characterized "the
range of the mandatory determinate minimum sentence" as
"very broad now." In imposing Rush Brantley's
sentence, the district court stated, "[W]hen I came into
court, the number that was kind of in my head for somebody
that I thought needed to do this was ten years for a