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State v. Ross

Court of Appeals of Iowa

July 3, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
BRANDON RAY ROSS, Defendant-Appellant.

          Appeal from the Iowa District Court for Calhoun County, Kurt L. Wilke, Judge.

         Brandon Ross appeals the sentence imposed following revocation of deferred judgments.

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

          Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Doyle, J., and Gamble, S.J. [*]

          GAMBLE, SENIOR JUDGE.

         Brandon Ross appeals the sentence imposed following the revocation of three deferred judgments. Ross claims the sentencing court did not exercise its discretion in revoking deferred judgment and imposing prison sentences. We vacate the sentencing order and remand for resentencing.

         In November 2017, Ross pled guilty to the crime of theft in the second degree in Calhoun County and was granted a deferred judgment. He had two additional deferred judgments from cases in Webster County. As part of the deferred judgments, he was placed on probation for a period of two years. Ross violated the terms of his probation, was arrested, and appeared for a hearing on a petition to revoke his probation. The district court found Ross had violated the terms of his probation, and a dispositional hearing was scheduled.

         At the dispositional hearing, the following exchange occurred between the prosecutor and the court:

MR. BALDRIDGE: Your Honor, in FECR355498, the underlying charge was possession with intent; and in FECR355495, the underlying charge was burglary in the third degree.
THE COURT: And he got deferreds on burglaries? Wow. Who gave the deferred on a burglary?
MR. BALDRIDGE: As far as the judge?
THE COURT: Yeah. You tell me it's me, I'll go cut my wrists.
THE COURT: Okay. Well, all I can see, Mr. Ross is very lucky to get that and he screwed it up because I would never have given a deferred on ...

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