IN THE COURT OF APPEALS OF IOWA
No. 13-1851
Filed October 29, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSEPH LEE BARNES,
Defendant-Appellant.
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Appeal from the Iowa District Court for Cerro Gordo County, Karen
Kaufman Salic, Judge.
The defendant challenges his sentence following conviction for
harassment in the second degree. AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Carlyle D. Dalen, County Attorney, and William J. Hoekstra, Assistant
County Attorney, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.
Joseph Barnes pleaded guilty to harassment in the second degree, in
violation of Iowa Code section 708.7(1) and (3) (2013), arising out of a series of
telephonic threats he made to a woman to kill the woman’s mom, dad, boyfriend,
and minor children and to have sex with the woman’s minor children. The court
sentenced Barnes to seven days in jail and imposed a fine of $315. The court
also entered a sentencing no contact order prohibiting Barnes from having
contact with the woman and her two minor children. On appeal, Barnes
contends (1) the district court abused its discretion in imposing sentence, and (2)
the sentencing no contact order is illegal.
We first address Barnes’ argument regarding the district court’s abuse of
discretion. The district court is free to impose any sentence within the statutory
maximum, and we will not reverse the sentence absent an abuse of discretion.
See State v. Floyd, 466 N.W.2d 919, 924 (Iowa Ct. App. 1990). “In exercising its
discretion, the district court is to 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. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). “[T]he failure to
acknowledge a particular sentencing circumstance does not necessarily mean it
was not considered.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). To
establish the court abused its discretion, Barnes must show the sentencing court
exercised its discretion “on grounds or for reasons clearly untenable or to an
extent clearly unreasonable.” State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).
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Barnes argues the sentencing court impermissibly focused on only a
single factor in imposing sentence: the nature of the offense, including the threat
to the woman’s minor children. The record belies Barnes’ argument. The record
reveals the court exercised its discretion based on the consideration of several
permissible factors without consideration of impermissible factors. The court
stated it considered the nature of the offense as described in the minutes of
testimony, the plea agreement, and the attorneys’ respective sentencing
recommendations. Although no presentence investigation report was available
for sentencing for this misdemeanor offense, the court inquired about the
defendant’s criminal history. The prosecutor stated, and the defendant agreed,
the defendant had prior felony convictions for forgery and burglary as well as five
convictions for driving while suspended. While the court referenced the threat to
the woman’s children, it did not identify the children as “victims” of the offense or
state the defendant tried to communicate with the children. The court simply
noted the mother and the children were subjects of the threat. We conclude the
court considered only permissible sentencing factors without improperly focusing
on a single factor. Accordingly, Barnes’ challenge to his sentence fails. See
State v. Ramirez, 400 N.W.2d 586, 590 (Iowa 1987) (affirming sentence where
the record demonstrated the court considered more than one permissible
sentencing consideration).
Barnes next contends the sentencing no contact order is illegal.
Specifically, Barnes argues the sentencing court erroneously checked a box on
the no-contact-order form finding Barnes committed domestic abuse assault,
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which subjects him to additional collateral consequences. The text beside the
checked box on the form states:
If checked, the defendant has been convicted of domestic abuse
assault under Iowa Code 708.2A. Therefore, the defendant shall
not possess, ship, transport, or receive firearms, offensive
weapons, or ammunition unless such rights have been restored in
accordance with Iowa Code section 724.27. Defendant shall
deliver all firearms to the CERRO GORDO County Sheriff or (law
enforcement agency) on or before October 28, 2013.
The State concedes the defendant was convicted for harassment in the second
degree and not domestic abuse assault and the finding was in error. The State
further concedes the sentencing no contact order should be corrected.
Accordingly, this portion of the no contact order is vacated. This matter shall be
remanded for the entry of a corrected sentencing no contact order.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.