State of Iowa v. Donnie Ray Thurman ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1806
Filed December 18, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DONNIE RAY THURMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,
District Associate Judge.
Donnie Ray Thurman appeals his sentence following a guilty plea to driving
while barred as a habitual offender. AFFIRMED.
Daniel M. Northfield, Urbandale, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
The State charged Donnie Ray Thurman with driving while barred as a
habitual offender. See Iowa Code § 321.561 (2018). Thurman stipulated to the
charge and requested a ten-week continuance to “get a valid driver’s license or
temporary restricted license in that period of time.” In exchange, the State joined
in Thurman’s continuance request and agreed that if he appeared at the next
scheduled court date with a valid license, the State would recommend dismissal
of the charge. Thurman and the State also agreed that if Thurman pled guilty, “the
parties [would] be free to argue for any legal sentence or disposition of this case.”
On the date the stipulation was filed, the district court continued the hearing “at the
request of the defense.” The court scheduled a pretrial conference for a date
seven weeks into the future.
On the date of the conference, Thurman filed a petition to plead guilty to the
charge. The district court accepted the plea and set the matter for sentencing.
Following an unreported sentencing hearing, the court adjudged Thurman guilty
and imposed a jail sentence of sixty days with credit for one day served. In support
of the sentence, the court checked several boxes on a preprinted form, including
the box for “maximum opportunity for rehabilitation.”
On appeal, Thurman argues the court abused its discretion in failing to
“adjust the sentence because” he failed to receive the ten-week continuance he
requested to obtain a temporary license and because “the court did not address
[his] rehabilitation . . . in a comprehensive manner.” See State v. Hopkins, 860
N.W.2d 550, 554 (Iowa 2015) (setting forth standard of review).
3
The State preliminarily responds by flagging “an issue with the underlying
record.” Specifically, the State notes that various statements of proceedings filed
after sentencing to establish a record for the unreported sentencing hearing conflict
with each other, and the district court did not resolve the conflict. See Iowa R. App.
P. 6.806 (allowing a “statement of the proceedings” to be prepared “to create a
record of a hearing or trial for which a transcript is unavailable” and providing the
statement together with any objections are to be submitted to the district court “for
settlement and approval”). We agree with the State.
Although the district court filed an order recounting the court’s recollection
of events, the conflicts between Thurman’s statement of proceedings and the
State’s statement of proceedings were not resolved. Accordingly, we decline to
rely on the statements of proceedings in deciding this appeal. See In re D.L., No.
18-2014, 2019 WL 719187, at *3 n.4 (Iowa Ct. App. Feb. 20, 2019).
That said, the district court’s sentencing order provides a sufficient record
for determining whether the court abused its discretion in imposing sentence. As
noted, the court checked several but not all the factors listed on the form order.
See State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014) (“In this age of word
processing, judges can use forms, such as the one available in this case, to check
the boxes indicating the reasons why a judge is imposing a certain sentence.”).
The court’s selections evince an exercise of discretion, and we discern no abuse
of discretion in the sentencing decision.
AFFIRMED.