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State v. Rushing

Court of Appeals of Iowa

October 9, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
RAYSHON T.P. RUSHING, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Heather L. Lauber (probation revocation) and Robert B. Hanson (plea and sentencing), Judges.

         A defendant appeals his conviction for being a felon in possession of a firearm. AFFIRMED.

          Seth Harrington of Harrington Law LC, Urbandale, for appellant.

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

          Considered by Tabor, P.J., and Mullins and Bower, JJ.

          BOWER, JUDGE.

         Rayshon Rushing appeals his conviction for being a felon in possession of a firearm. Rushing claims the district court did not have the authority to place him at a residential facility when deferring judgment or to revoke his probation for rule violations. He also claims the court erred in ordering him to pay the law-enforcement-initiative surcharge. We find the court had the authority to place Rushing in the residential facility as a condition of probation and to revoke his probation. We find the surcharge, although not applicable, was not assessed against Rushing, making his claim without merit. We affirm.

         I. Background Facts & Proceedings

         In December 2016, Rushing was charged with criminal gang participation and being a felon in possession of a firearm. On March 10, 2017, Rushing pleaded guilty to being a felon in possession of a firearm, in violation of Iowa Code section 724.26 (2016), and the State dismissed the gang-participation charge. The State and the presentence investigation report preparer recommended imprisonment. At the sentencing hearing in April, Rushing requested a deferred judgment. The court deferred judgment and placed Rushing on probation under the supervision of the department of correctional services (DCS). Rushing was ordered to reside at a residential facility as a condition of probation. The court also ordered Rushing to pay restitution and submit a DNA sample, and assessed a law-enforcement-initiative surcharge, if applicable.

         That summer, Rushing violated facility rules and incurred other probation violations. Rushing's probation was continued following a revocation hearing in September. Rushing then incurred additional violations, stipulated to the violations, and agreed to the revocation of his probation and deferred judgment. In March 2018, the court revoked Rushing's deferred judgment, adjudicated him guilty of being a felon in possession of a firearm, and sentenced him to prison.

         Rushing appeals, claiming the court did not have the authority to order him to a residential facility when he had not been convicted and the court erred in ordering Rushing to pay the law-enforcement-initiative surcharge.[1]

         II. Standard of Review

         Rushing challenges the legality of a condition of his probation. Our review of a defendant's sentence is for correction of errors at law. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). "We may correct an illegal sentence at any time." State v. Davis, 544 N.W.2d 453, 455 (Iowa 1996). "When a defendant challenges the terms of probation, '[i]t has long been a well-settled rule that trial courts have a broad discretion in probation matters which will be interfered with only upon a finding of abuse of that discretion.'" Valin, 724 N.W.2d at 444 (citation omitted).

         III. ...


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