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State v. Bragg

Court of Appeals of Iowa

June 5, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
TERRY THOMAS BRAGG, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         Terry Bragg appeals the district court's decision to require he serve the sentence imposed in this case consecutive to his sentence in another case asserting the court considered an impermissible sentencing factor and therefore abused its discretion.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

          DOYLE, JUDGE.

         In March 2018, Terry Bragg was charged with three counts of first-degree robbery. He subsequently entered a plea of guilty to one count of second-degree robbery, a lesser-included offense, in exchange for the State dismissing the remaining counts. As part of the agreement, "the parties would be free to argue with regard to the mandatory minimum, where it falls within the range of fifty to seventy percent, and also free to argue as to whether this term of incarceration should be concurrent with or consecutive to a probation revocation," of which Bragg had already been adjudicated.

         A sentencing hearing followed. After hearing the arguments of the parties, the district court sentenced Bragg to ten years in prison with a mandatory minimum of fifty percent to run consecutive to Bragg's other sentence. The court explained the reasons for its decision to impose that particular sentence on the record:

Well, Mr. Bragg, it's time for the court to do its part in these proceedings. To a certain degree, the court's decision is a simple one. You pled guilty to the commission of this class "C" felony, and so on the basis of your plea, I'm going to adjudicate you guilty of the instant crime, which was robbery in the second degree.
And that carries the mandatory ten-year indeterminate term subject to a mandatory minimum of somewhere between fifty and seventy percent. So the court's only discretion here is where to put the mandatory minimum between fifty and seventy percent.
And then we have the seven years that have been imposed on your other matter, the probation violation matter, where your probation was revoked and a sentence, effectively, not to exceed seven years was imposed. And then the question becomes whether that is concurrent with or consecutive to the sentence that's imposed in this new matter.
And the court has reviewed all of the information that it has available to it. That includes all of the information in the court file, plus, in particular, the information in the presentence investigation report, the information that it has available to it from the comments of counsel as well as your comments.
The court is concerned. I'm certainly concerned about-you have a criminal history that is not insignificant. And then you add to that the fact that you committed the instant crime while you were on probation, which is not a good sign.
Then you have significant indications from the [presentence investigation report] that you have substance abuse problems that need to be addressed and mental health ...

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