State of Iowa v. Clifton L. Johnson ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1073
Filed May 17, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CLIFTON L. JOHNSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,
Judge.
Clifton Johnson appeals the district court’s imposition of consecutive
sentences. AFFIRMED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.
Clifton Johnson has a lengthy criminal record dating back to 1990. Until
2015, his convictions in Iowa were for offenses that were, at most, aggravated
misdemeanors, including two serious-misdemeanor convictions for possession of
a controlled substance, in 2004 and 2014, respectively.
In March 2015, Johnson was charged in case number FECR284624 with
two felonies: first-degree theft and felony eluding. See Iowa Code §§ 321.279(3),
714.2(1) (2015). Johnson pled guilty to felony eluding as charged and to the
lesser offense of operating a vehicle without the owner’s consent, an aggravated
misdemeanor. See id. §§ 321.279(3), 714.7. Johnson was sentenced to five
years on the eluding conviction and two years on the operating-without-consent
conviction, ordered to be served concurrently, but the sentences were
suspended and Johnson was placed on probation for two years. As part of his
probation, Johnson agreed to participate in a residential-treatment program.
In 2016, law enforcement officials were dispatched to a location
concerning a dispute, and Johnson was one of the individuals at the location. At
that time, a warrant was out for Johnson’s arrest because he had been dismissed
from the treatment program in violation of his probation agreement. Johnson
was arrested and searched, and cocaine, methamphetamine, and marijuana
were found on his person. Johnson was subsequently charged as a habitual
offender in case number AGCR293160 with three counts of possession of a
controlled substance, third offense, in violation of sections 124.401(5) and 902.8.
In AGCR293160, Johnson pled guilty to one count of possession of a
controlled substance, third offense, without the habitual-offender enhancement.
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This offense is a class “D” felony, which carries a maximum sentence of five
years. See id. §§ 124.401(5), 902.9(1)(e). As part of the plea agreement, both
the State and Johnson agreed Johnson violated his probation agreement in
FECR284624, and as a result, probation would be revoked and his previously
suspended, concurrent sentences would be imposed. However, the State was
free to argue that Johnson’s sentence in AGCR293160 be imposed
consecutively to his sentence in FECR284624, whereas Johnson argued for
concurrent sentences. After a hearing, the district court ordered Johnson’s five-
year sentence in AGCR293160 be run consecutively to his five-year sentence in
FECR28462, for a total period of ten years.
Johnson now appeals the district court’s decision to run his sentences
consecutively and not concurrently. He asserts the court’s sentencing decision
“does not afford him the maximum opportunity to rehabilitation,” asserting a
concurrent sentence would allow him an opportunity to enter treatment sooner.
He also notes his crime was not violent, and, as his argument goes, “therefore
lacks the seriousness that would require an extended prison sentence.”
Additionally, he suggests the court’s sentencing decision was “an attempt to
thwart a perceived risk of early parole.”
Sentencing decisions within the statutory limits will not be reversed
“absent an abuse of discretion.” State v. Letscher, 888 N.W.2d 880, 883 (Iowa
2016); State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015). An abuse of discretion
occurs where the district court “exercises its discretion on grounds clearly
untenable or to an extent clearly unreasonable,” meaning the court’s ground or
reason is “not supported by substantial evidence or . . . is based on an erroneous
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application of the law.” State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). “We give
sentencing decisions by a trial court a strong presumption in their favor.” State v.
Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). “In exercising discretion, the district
court must ‘weigh all pertinent matters in determining a proper sentence,
including the nature of the offense, the attending circumstances, the defendant’s
age, character, and propensities or chances for reform.’” State v. Thacker, 862
N.W.2d 402, 405 (Iowa 2015) (citation omitted).
Upon our review of the record, we find no abuse of discretion by the
district court in determining the sentences should be run consecutively. Here,
the district court explained it was running the sentence consecutively to the
sentence in FECR284624
based on the separate and serious nature of the offense. It
is . . . also because of [your] prior criminal history, which is fairly
extensive . . . . It’s based on your age, your substance-abuse
history, [and] the nature of the offense committed. Those are some
of the things that the court has considered in making this
sentencing determination.
The court has determined that probation is not appropriate
because it wouldn’t provide maximum opportunity for rehabilitation
and protection of the public.
Although the recitation by the court is not lengthy, the district court
properly considered various factors and options when imposing consecutive
sentences on Johnson. Nothing in the punishment exceeds statutory limitations,
and it is not for this court on appeal to substitute our judgment as to what might
have been the appropriate sentence. The consecutive sentences were neither
unreasonable nor based on untenable grounds. Therefore, there was no abuse
of discretion. We affirm the consecutive sentences imposed by the court.
AFFIRMED.