State of Iowa v. Timothy Allen Fleshner ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1035
Filed August 30, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TIMOTHY ALLEN FLESHNER,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, Linda M.
Fangman, Judge.
A defendant appeals the revocation of his deferred judgment and imposition
of a prison term. AFFIRMED.
Heidi Miller of Gribble, Boles, Stewart & Witosky Law, Des Moines, for
appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Tabor and Greer, JJ.
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TABOR, Judge.
A deferred judgment is “basically a second chance.” That’s what the district
court told Timothy Fleshner at his probation revocation hearing. Fleshner
conceded committing new crimes while on probation. But he asked for “another
chance” to avoid a burglary conviction. The court denied Fleshner that third
chance. Instead, it imposed judgment and sentenced him to an indeterminate five-
year prison term. Fleshner now contests judgment and sentence. Because the
district court acted within its discretion, we affirm.
In November 2017, then-eighteen-year-old Fleshner broke into a
convenience store to steal liquor and tobacco. The State charged him with
burglary in the third degree, a class “D” felony, under Iowa Code sections 713.1
and 713.6A(1) (2017). In August 2018, he pleaded guilty and received a deferred
judgment with two to five years of probation supervised by the department of
correctional services (DCS). Three years later, DCS filed a probation violation
report alleging Fleshner was selling marijuana and had access to a handgun. He
pleaded guilty to possession of a controlled substance with intent to deliver and
possession of a firearm as a felon. The court held a joint hearing on the probation
violation and sentencing for the new offenses.
Following the State’s recommendation, the court revoked Fleshner’s
deferred judgment and sentenced him to an indeterminate five-year prison term
for the burglary conviction. The court ran that sentence concurrent to the
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indeterminate ten-year term (two consecutive five-year terms) for his new
offenses.1 Fleshner appeals the order revoking his deferred judgment.2
We review his challenge for an abuse of discretion. State v. Covel, 925
N.W.2d 183, 187 (Iowa 2019). We will overturn the revocation order only if the
district court exercised its discretion on grounds or for reasons that are clearly
untenable or unreasonable. Id.This record reveals no abuse of discretion. Because Fleshner
acknowledged committing new crimes—violating the terms of his probation—the
court had authority to revoke the deferred judgment and impose any sentence
authorized by law. See Iowa Code § 907.3(2)(b); State v. Kirby, 622 N.W.2d 506,
511 (Iowa 2001). Fleshner contends that continuing probation would have
provided him with the “maximum opportunity for rehabilitation” while ensuring
community safety. But the district court saw the case differently. It noted the threat
posed by Fleshner’s new crimes: “[d]ealing drugs is dangerous and having a gun
is dangerous.” The court’s view was reasonable based on the facts before it.
Giving deference to that view, we affirm the order revoking Fleshner’s deferred
judgment and imposing a prison term.
AFFIRMED.
1 This appeal does not encompass those new offenses. At the sentencing hearing,
Flesher’s counsel joined in the State’s recommendation for the combination of
consecutive and concurrent sentences.
2 Fleshner has good cause under Iowa Code section 814.6(1)(a)(3) to appeal the
order revoking his deferred judgment and entering a judgment of conviction and
sentence. See State v. Thompson, 951 N.W.2d 1, 5 (Iowa 2020)