State of Iowa v. Mark Anthony Johnson ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1354
Filed May 25, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK ANTHONY JOHNSON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
Mark Anthony Johnson appeals his sentence, alleging the district court
abused its discretion in sentencing him to incarceration rather than probation.
AFFIRMED.
Raya D. Dimitrova of Carr & Wright, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Alexandra
Link (until withdrawal), Assistant Attorneys General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.
Mark Anthony Johnson appeals his sentence, alleging the district court
abused its discretion in sentencing him to incarceration rather than probation.
We affirm.
After his conviction for assault with intent to commit sexual abuse on
August 27, 2003, Johnson was required to register as a sex offender. In 2006,
2009, and 2014, Johnson was convicted of failing to comply with the registration
requirement. On October 20, 2014, Johnson registered his address as required.
On December 5, 2014, Johnson moved into his sister’s apartment—a different
apartment in the same apartment complex. Following this move, Johnson failed
to timely update the move from one apartment to the other and failed to register
his nieces and nephews as residents of the apartment, listing only his sister.
Johnson contends he did not know this was a requirement. This was Johnson’s
fourth failure to comply with the registry.
On June 24, 2015, Johnson pled guilty to one count of failure to comply
with the sex offender registry, second offense, a Class “D” felony.1 The
presentence investigation report recommended a suspended sentence and term
of probation. At sentencing, the State also recommended a suspended
sentence. The district court sentenced Johnson to a term of incarceration not to
exceed five years. Johnson appealed.
“We review sentencing decisions for abuse of discretion or defect in the
sentencing procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).
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At the plea hearing, Johnson was informed by the court that the court was not bound
by Johnson’s plea agreement with the State.
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“An abuse of discretion will only be found when a court acts on grounds clearly
untenable or to an extent clearly unreasonable.” Id. (quoting State v. Leckington,
713 N.W.2d 208, 216 (Iowa 2006)). “We give sentencing decisions by a trial
court a strong presumption in their favor.” Id. When, as here, the sentence given
falls within statutory parameters, “we presume it is valid and only overturn for an
abuse of discretion or reliance on inappropriate factors.” Id. at 554. “To
overcome the presumption [of validity], we have required an affirmative showing
the sentencing court relied on improper evidence.” Id. (alteration in original)
(citation omitted). Relevant factors to consider when imposing a sentence
include: “the nature of the offense, the attending circumstances, defendant’s age,
character and propensities and chances of [the defendant’s] reform.” Id.
(alteration in original) (citation omitted). Additional factors include “[t]he
defendant’s prior record of convictions and prior record of deferments of
judgment,” “[t]he defendant’s employment circumstances,” “[t]he defendant’s
family circumstances,” “[t]he defendant’s mental health and substance abuse
history and treatment options available in the community and the correctional
system,” “[t]he nature of the offense committed,” and “[s]uch other factors as are
appropriate.” Iowa Code § 907.5(1) (2015).
At sentencing, the district court indicated it had read and reviewed the
presentencing report and stated:
The difficulty here, Mr. Johnson, is this is the fourth time we’ve
been through this. And at some point in time, it simply has to be
clear to you that these registration requirements are extremely
important.
I have seen enough of these now to understand it is very
difficult to find housing, very difficult to find housing because of this.
But we’ve been through this now quite a few times, and it should be
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clear to you at this point that there simply isn’t room for error
anymore.
And I must say that you are correct that the bulk of your
criminal activity began to decrease in the mid-2000s, 2005 or ’06 or
thereabouts. But it’s very difficult to explain to the public—you’re
done with your allocution. It’s very difficult to explain to the public
how a person can make this mistake and get probation and then
make the same mistake again and get probation and then make the
mistake a third time and get probation and then make a mistake the
fourth time and get probation. I simply can’t justify that in terms of
the protection of the public. And there has to be something done to
impress upon you how serious it is to comply with this registration.
I know how difficult it is, but you’re the guy that has to be
responsible. And so for that reason, you’re adjudged guilty of
failure to comply with the Sex Offender Registry, second or
subsequent offense in this case. It’s actually the fourth time. And
you’re sentenced to serve a term of not more than five years.
The sentencing order, dated August 4, 2015, indicated the district court
had considered Johnson’s age, prior record of convictions and deferments of
judgment, the nature of the offense committed, the plea agreement, and the
statutory sentencing requirements. By nunc pro tunc order dated August 11,
2015, in which the district court denied probation, the district court further
explained “probation is denied because probation would not provide maximum
opportunity for rehabilitation of the defendant and protection of the public from
further offenses.”
Johnson does not argue the court considered improper factors. Instead,
Johnson argues the court incorrectly weighed the factors, failed to give sufficient
consideration to certain mitigating factors—such as the nonviolent nature of the
offense and the fact Johnson took responsibility by pleading guilty—and failed to
give specific reasons for its decision. That Johnson would have the court grant
greater weight to other factors does not constitute an abuse of discretion. The
district court considered numerous factors and explained the reasons for the
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sentence imposed. See State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000)
(noting “the reasons need not be detailed” but the district court must provide “at
least a cursory explanation . . . to allow appellate review of the trial court’s
discretionary action”). On our review, we conclude the sentence imposed by the
district court was not an abuse of discretion.
AFFIRMED.