from the Iowa District Court for Polk County, Jeffrey D.
Millard appeals the sentence imposed on his conviction for
possession of marijuana with intent to deliver.
M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.
Millard appeals the sentence imposed after he pled guilty to
possession of marijuana with intent to deliver. The district
court sentenced Millard to a five-year prison term. On
appeal, Millard argues the district court abused its
discretion in denying his request for a suspended sentence
as here, the sentence imposed is within the statutory limits,
it "is cloaked with a strong presumption in its favor,
and will only be overturned for an abuse of discretion or the
consideration of inappropriate matters." State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002). "A
district court abuses its discretion when it exercises its
discretion on grounds clearly untenable or to an extent
clearly unreasonable, which occurs when the district court
decision is not supported by substantial evidence or when it
is based on an erroneous application of the law."
State v. Wickes, 910 N.W.2d 554, 564 (Iowa 2018)
court is to select the sentence that "will provide the
maximum opportunity for the rehabilitation of the defendant,
and for the protection of the community from further offenses
by the defendant and others." Iowa Code § 901.5
(2017). "In exercising its discretion, the district
court is to weigh all pertinent matters in determining a
proper sentence, including the nature of the offense, the
attending circumstances, the defendant's age, character,
and propensities or chances for reform." State v.
Johnson, 513 N.W.2d 717, 719 (Iowa 1994). It must then
determine the appropriate sentence based on the individual
factors of each case, though no single factor alone may be
determinative. See id.
sentencing Millard, the district court expressed concern that
Millard's record includes a number of violent crimes. The
court also noted that Millard had never successfully
completed probation in the past. It explained:
You've been revoked when you've been on probation.
You've been revoked when you've been on work release.
So putting you on probation at this point in time doesn't
seem to make a lot of sense because that hasn't worked in
the past either. I know you're only 21. But, again, then
we go back to what's that risk. It's not risk of
another drug possession. It's a risk that you're
doing other things, like getting in fights with police
officers or hurting other members of the public. I mean,
that's my concern. Because I've got to consider the
protection of the public along with your rehabilitation.
And if I thought there was a great chance of you being
rehabilitated and doing well on probation, . . . I would
probably take that opportunity. But I don't see that
based upon your record. I know you're only 21. You say
you're tired. You're motivated by this new child
that's on the way. Those are all good things . . . that I
look at because . . . they can be something that turns a
person around. But you do have a prior child, and that child
is six years old. That didn't stop you from committing
crimes either. And those are all the things that I'm
looking at when I make the decision on sentencing.
I really want to believe you, that this is it. But I
don't see it based on the record. I hope you prove me
wrong. I hope you go to prison and that you start to turn
things around and use the programming, that you turn it into
a positive experience, and that you use these motivating
factors as a means to get parole as soon as you can, that
when you get on parole that you complete it satisfactorily
and show that-show that I'm wrong. I would be happy to
see that, because that would mean you would be successful.
But that's the direction we're going to go in this
argues that the court "seemed to rely on its perceived
rehabilitative factors of prison in handing down [his]
sentence" and claims doing so was error under Tapia
v. United States, 564 U.S. 319, 332 (2011) (holding the
Federal Sentencing Reform Act precludes lengthening a
defendant's prison term to promote rehabilitation). We
disagree. The district court's discussion of
rehabilitation concerned past attempts to rehabilitate
Millard that had failed and the court's hope that Millard
would make the most of ...