Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 23-0180
                            Filed December 20, 2023


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRADLEY JOSEPH EVANS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Mitchell County, DeDra Schroeder,

Judge.



      A defendant appeals the sentence imposed following his pleas of guilty to

two counts of domestic abuse assault by impeding airflow and one count of willful

injury causing bodily injury. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Brenna Bird, Attorney General, and Nicholas E. Siefert, Assistant Attorney

General, for appellee.



      Considered by Greer, P.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.

       Bradley Joseph Evans appeals the sentence imposed following his pleas of

guilty to two counts of domestic abuse assault by impeding airflow and one count

of willful injury causing bodily injury. Finding no abuse of discretion in the district

court’s sentencing decision, we affirm.

       Evans was originally charged in one case with willful injury causing serious

injury, a class “C” felony, and domestic abuse assault by impeding air/blood flow

causing bodily injury, a class “D” felony following an assault on J.M. on March 20–

21, 2022. In a second case, Evans was charged with domestic abuse assault

committed by knowingly impeding the normal breathing or circulation of blood flow

of another, a class “D” felony; willful injury, a class “D” felony; and two counts of

domestic abuse assault, both aggravated misdemeanors. These charges arose

from assaults on J.M. on October 12–14, 2022.

       On November 1, just before the start of the first trial, the parties reached a

global plea agreement in which Evans would plead guilty to three class “D” felonies

and the prosecution agreed to follow the recommendation of the presentence

investigation report (PSI) and dismiss the other charges.

       Evans entered written pleas in both cases. In the first, he pleaded guilty to

willful injury causing bodily injury and domestic abuse assault by impeding the

normal breathing of J.M. He admitted:

       on or about March 20, 2022, in Mitchell County, Iowa, I did an act,
       which was not justified with the specific intent to cause a serious
       injury to J.M. and my act caused bodily injury to the other person. I
       further admit that I did an act, without justification, which was
       intended to cause pain or injury to, or which was intended to result in
       physical contact which was insulting or offensive to another, coupled
       with the apparent ability to execute the act; and I knowingly impeded
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      the normal breathing or circulation of the blood of another by applying
      pressure to the throat or neck of the other person or by obstructing
      the nose or mouth of the other person. My act caused bodily injury
      to [a] household member who resided together at the time of the
      assault.

      He entered a separate written plea of guilty to one count of domestic abuse

assault by impeding the normal breathing, admitting:

      I admit on or about October 14, 2022, in Mitchell County, Iowa, I did
      an act, without justification, which was intended to be insulting or
      offensive or to result in bodily contact which was insulting or offensive
      to J.M. with the apparent ability to execute the act. I knowingly
      impeded the normal breathing or circulation of the blood of J.M. by
      applying pressure to the throat or neck of the other person or by
      obstructing the nose or mouth of the other person. M[y] act caused
      bodily injury[.]

      The presentence investigation report noted Evans was a former police

officer, deputy, and drug abuse counselor. Evans indicated the court could rely on

information contained in the PSI for sentencing purposes.            Though Evans

acknowledged both assaults occurred while he was intoxicated, the PSI report

noted Evans indicated “he is not an alcoholic,” “has never had a substance abuse

evaluation,” and “appeared unsure if this was an issue for him or not at this time.”

The PSI report concluded:

      While on pretrial supervision it appears that the defendant did not
      seek treatment for his current issues and committed the same
      offense type while on pretrial release. Both of these criminal cases
      involve domestic violence with strangulation and also a willful injury
      that caused the victim to suffer a traumatic brain injury. Based on
      the aforementioned concerns, it is recommended the defendant be
      sentenced to incarceration.

      At the January 3, 2023, sentencing hearing, the court noted J.M. had

submitted a written statement and asked for the parties’ recommendations. The

State agreed with the PSI recommendation that prison terms be imposed. The
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defense urged the court to suspend sentences and impose relevant conditions of

probation.

      Evans gave a statement of allocution, admitting he had “c[o]me to terms

with the realization that I am an alcoholic” and needed help with his mental health.

Evans asked that the court “strongly consider giving me the chance to prove myself

by sentencing me to probation and mandating a substance abuse eval allowing

me to demonstrate that I’m capable and dedicated to getting the treatment that I

need and require.” He expressed remorse about injuring J.M.

      The court stated these reasons for imposing sentence:

              The laws of Iowa require that a court impose a sentence that
      provides for rehabilitation, protects the community, and deters others
      from committing these types of offenses.
              There are a lot of different factors to consider in determining
      an appropriate sentence. I look at your age. I look at your criminal
      history, which is none. I look at your employment circumstances,
      your family circumstances. I look at the nature of the offense,
      offenses. I look at your attitude, your statements you make, the
      presentence investigation report, any victim impact statements, and
      statements and arguments of counsel. I have considered all of those
      factors.
              The following is your sentence. Under FECR026562, willful
      injury, D felony, and domestic abuse assault impeding air flow, a D
      felony, on each, you’re sentenced to an indeterminate sentence not
      to exceed five years in the Iowa prison system. Those sentences
      are not suspended. You’ll be sent to the Iowa Medical and
      Classification Center on those cases. Counts I and II will run
      concurrent to each other. The fine of $1025 will be suspended on
      each Count.
              On AGCR026685, which is a domestic abuse assault
      impeding air flow, D felony, you’ll be sentenced to an indeterminate
      sentence not to exceed five years. That will not be suspended. The
      fine of $1025 will be suspended. That will run consecutive to the
      FECR case. The reason for that is while I recognize it’s the same
      victim, they’re separate and distinct offenses that happened on
      separate and distinct days.
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       Evans appeals, contending the court abused its sentencing discretion in

failing to give adequate reasons for the sentence imposed and in imposing a

sentence of incarceration rather than probation.

       We review the district court’s sentencing decision for correction of errors of

law. State v. Formaro,
638 N.W.2d 720, 724
 (Iowa 2002). Because the sentence

imposed here is within 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.”
Id.
 “An abuse of discretion will not be

found unless we are able to discern that the decision was exercised on grounds or

for reasons that were clearly untenable or unreasonable.”
Id.

       Iowa Rule of Criminal Procedure 2.23(3)(d) requires the court to “state on

the record its reason for selecting the particular sentence.” “Although the reasons

need not be detailed, at least a cursory explanation must be provided to allow

appellate review of the trial court’s discretionary action.” State v. Jacobs,
607 N.W.2d 679, 690
 (Iowa 2000).

       The court considered rehabilitation, the protection of the community, and

deterrence of others. It also considered Evan’s age, his lack of criminal record, his

employment and family circumstances, the nature of the offenses, Evans’s attitude

and statements, the victim’s statement, the PSI, and statements of counsel. The

court concluded an imposed prison term was appropriate.

       We find no abuse of discretion in the court’s decision. The court’s reasoning

does not prevent our review of the exercise of the court’s discretion. See State v.

Boltz,
542 N.W.2d 9, 11
 (Iowa Ct. App. 1995) (“Even a succinct and terse
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statement of reasons may be sufficient as long as the brevity displayed does not

prevent us from reviewing the exercise of the trial court’s sentencing discretion.”).

       We determine the statement of reasoning provided by the court supporting

consecutive sentences is also sufficient.     The court noted the offenses were

committed against the same victim on different dates. See State v. Carberry,
501 N.W.2d 473, 478
 (Iowa 1993) (noting though the “statement of reasons for

imposing consecutive sentences was extremely terse[,] [s]uch brevity of

statement, however, does not necessarily handicap our review of the sentencing

discretion”). Finding no abuse of discretion, we affirm.

       AFFIRMED.

Greer, P.J., concurs; Ahlers, J., dissents.
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AHLERS, Judge (dissenting).

       I respectfully dissent for two reasons.         First, Iowa Rule of Criminal

Procedure 2.23(3)(d)’s requirement that the court “state on the record its reason

for selecting the particular sentence” is not satisfied by merely reciting the statutory

factors.1 In State v. Thacker, our supreme court found mere recital of “the relevant

factors required by law” insufficient to satisfy the rule’s requirement because it “tells

us nothing about how the district court arrived at a particular sentence in a

particular case.”
862 N.W.2d 402, 410
 (Iowa 2015). In my view, that is what

happened here.      While the district court recited statutory factors, it gave no

explanation as to what it was about those factors that led to the sentences

imposed. In other words, the court gave no reasons for the sentences. While a

“terse and succinct” statement of reasons may be sufficient, see
id.
 at 408 (quoting

State v. Johnson,
445 N.W.2d 337, 343
 (Iowa 1989)), the statement here did not

clear that low bar. I would find the failure to state reasons for the sentences

imposed violated rule 2.23(3)(d), vacate the sentences, and remand for

resentencing.
Id. at 410
 (vacating the sentence and remanding for resentencing

when insufficient reasons were given for the sentence).

       Second, I also believe that resentencing is required because the district

court suspended the fines imposed without also placing Evans on probation. For

the reasons explained in my partial dissent in State v. Laue, I believe it is



1 Amendments to the Iowa Rules of Criminal Procedure became effective after

imposition of sentencing in this case, including changes to rule 2.23. Following
enactment of those amendments on July 1, 2023, rule 2.23(2)(f) now requires the
district court to “ensure that the basis for the sentence imposed appears in the
record.”
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impermissible for the district court to suspend any part of a sentence without also

placing the defendant on probation. See No. 23-0208,
2023 WL 8448475
, at *2-3

(Iowa Ct. App. Dec. 6, 2023) (Ahlers, J., concurring in part and dissenting in part).

Because the district court did so here, I believe the sentences imposed are illegal,

and we must vacate the sentences and remand for resentencing. See id. at *3

(noting that the remedy for a sentencing error of this type is to vacate the sentence

and remand for resentencing).

       For these reasons, I dissent from the majority’s decision to affirm.