IN THE COURT OF APPEALS OF IOWA
No. 14-0186
Filed December 10, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
AMBER SKYE KELLEY,
Defendant-Appellant.
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Appeal from the Iowa District Court for Lee (South) County, Mary Ann
Brown, Judge.
Amber Kelley appeals the district court’s sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, and Michael P. Short, County Attorney, for appellee.
Considered by Danilson, C.J., and Vogel and Bower, JJ.
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BOWER, J.
Amber Kelley appeals the district court’s sentence. Kelley claims the court
abused its discretion when it refused to consider granting Kelley a deferred
judgment based on a “personal fixed policy.” She also claims the court abused
its discretion by imposing consecutive sentences and substantial fines based
solely on the nature of the offenses, and by requiring Kelley to pay $30,685 in
costs, fines, surcharges, and restitution during the term of her probation. Kelley
requests her sentences be vacated and her case be remanded for a new
sentencing hearing. We find the court did not abuse its discretion and affirm
Kelley’s sentence.
I. BACKGROUND FACTS AND PROCEEDINGS
In May 2013, members of the Lee County Narcotics Task Force began
working with a confidential informant to purchase marijuana from an individual
named Clifton Fields. Amber Kelley accompanied Clifton Fields during the first
transaction with the informant. Field’s took the informant’s money and Kelley
delivered the marijuana totaling 458.1 grams. In two subsequent transactions,
Kelley sold an additional 331 grams to the informant.
On June 14, 2013, a search warrant was issued for Kelley’s home and
business. After arresting Kelley and conducting a search of her home, the police
found an additional 2662.2 grams of marijuana and another 1444.7 grams of a
mixture of marijuana and non-marijuana. The police also found packaging
materials.
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On June 25, 2013, the State filed a thirteen-count trial information
accusing Amber Kelley of: three counts of delivering less than fifty kilograms of
marijuana, four counts of tax stamp violations, three counts of money laundering,
one count of possession of less than fifty kilograms of marijuana with intent to
deliver, one count of ongoing criminal conduct, and one count of keeping a drug
house. Kelley and the State reached a plea agreement that Kelley would plead
guilty to three counts of delivery of less than fifty kilograms of marijuana and one
count of possession with intent to deliver less than fifty kilograms of marijuana.
She would pay restitution on the three counts of delivering marijuana, and the
State agreed to dismiss the remaining counts. There was no sentencing
agreement.
A presentence investigation report (PSI) was completed. The PSI
recommended Kelley be granted a suspended sentence and placed on
probation. The PSI cited the fact Kelley had family ties in the area, a stable
residence, good health, and self-employment. The State recommended a
suspended sentence, but did not argue the suspended sentences should run
consecutively or recommend the amount of any fines. Kelley’s attorney
requested a deferred judgment claiming Kelley was not the only person involved
in the crime, she had been used by the other person involved, and a felony
conviction on her record would impact her future employment prospects.
When imposing the sentence the district court stated:
[B]ut what I found of significance included the fact that you’re
25 years old, that you report being self-employed with A.K. Car
Rentals since January of 2013. You also had a clothing store in
2010 and one of your letters of reference indicates that you may
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have another job now. In 2008, you worked for the city government
in New York City. You completed the tenth grade, have a GED in
2008, apparently do have this hospitality certificate that your
attorney talked about. Currently, you’re receiving food stamps.
You have a 6-year-old child who lives with you. You moved to
Keokuk with your parents in 1991.
You’ve denied an alcohol or drug problem, say that you’ve
never used illegal drugs. You did complete ADDS outpatient
treatment. Your only prior criminal record of any significance is a
theft adjudication as a juvenile, which I normally would not even
take into consideration.
You’re not eligible for a deferred judgment in my mind given
the circumstance of this crime. This is a serious crime. A person
that’s involved with 8 pounds of marijuana, delivering it, selling it
and helping someone else do it, even if you’re not the major
character, is the type of crime that deserves to be on a person’s
criminal record. A person should not be able to commit that kind of
crime and tell society I was never convicted of a criminal offense.
So I’m sitting here wondering whether to send you to prison
or to give you a suspended sentence. Court Services recommends
a suspended sentence and the County Attorney also recommends
a suspended sentence. I’m not a hundred percent convinced that a
suspended sentence will do enough to be a deterrent effect for you
and other people in similar situations.
You know, there’s a great debate right now about the
dangers of marijuana versus the dangers of alcohol and whether
one’s worse than the other. But someone who is selling or involved
in having available 8 pounds of marijuana for sale isn’t in that
discussion, that’s a totally separate kind of individual, and you’re
just as responsible by driving that car and facilitating it as the fellow
who may have brought the marijuana to your house. And I had
planned to send you to prison today but given the fact that the
County Attorney’s recommending a suspended sentence, I guess I
will not send you to prison but will grant a suspended sentence in
this case. I do think that all four of those sentences should run one
after another then, meaning that if you violate your probation,
you’re going to face 20 years in prison because there needs to be
some motivation for you to comply with your terms of probation.
Given the fact that this was a for-profit activity, I think that that
motivation needs to be great and I also am going to impose a
substantial fine in this matter because this clearly was a for-profit
activity.
The court initially imposed consecutive five-year indeterminate terms of
imprisonment, but suspended the sentences and placed Kelley on probation for
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five years. The court imposed a total of $220 in costs, $20,000 in fines, $7540 in
surcharges, and $2925 in restitution, for a total of $30,685. The court ordered
prompt payment of the fines as a term of Kelley’s probation.
Kelley now appeals from the district court’s sentence.
II. STANDARD OF REVIEW
We review sentencing decisions for correction of errors at law. State v.
Valin, 724 N.W.2d 440, 444 (Iowa 2006). A district court’s sentencing decision to
impose a sentence within the statutory limits is cloaked with a strong
presumption in its favor and will only be overturned for an abuse of discretion or
defect in the sentencing procedure, such as considering impermissible factors.
State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). When a defendant
challenges the conditions of probation, “‘[i]t has long been a well-settled rule that
trial courts have a broad discretion in probation matters which will be interfered
with only upon a finding of abuse of that discretion.’” Valin, 724 N.W.2d at 444
(citation omitted).
III. ANALYSIS
Kelley claims the court failed to exercise its discretion in refusing to grant
a deferred judgment, and abused its discretion in imposing consecutive
sentences and requiring her to pay $30,685 in costs, fines, surcharges, and
restitution. The district court, and we on review, are to consider all relevant
matters including “the nature of the offense, the attending circumstances,
defendant’s age, character and propensities and chances of his reform. The
courts owe a duty to the public as much as to the defendant in determining a
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proper sentence. The punishment should fit both the crime and the individual.”
State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979) (citing State v. Cupples,
152 N.W.2d 277, 280 (Iowa 1967)). “[R]ehabilitation and community protection
are foremost concerns in the determination. Factors to be considered are the
traditional factors that surround the nature of the offense and the characteristics
of the individual.” State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983).
The court’s sentencing colloquy clearly evidences it considered all the
determinations listed by our supreme court in Hildebrand, and did not rely on a
“personal fixed policy,” or rely solely on the nature of the offense in making the
sentencing determinations. Although the sentencing court stated, “[y]ou’re not
eligible for a deferred judgment in my mind, given the circumstances of the
crime,” which might suggest a “personal fixed policy” if stated in isolation, we
note the court could have used a better phrase to get the point across. However,
we find that read in context of the colloquy there is no “personal fixed policy”
shown in this case. Relatedly, the court’s decision to impose over $30,000 in
costs, fines, surcharges, and restitution as part of Kelley’s probation was not an
abuse of discretion. The court’s colloquy shows it was aware of Kelley’s financial
situation when it imposed the sum, but it also considered her age, employment,
the nature of the offense, the amount of drugs in Kelley’s possession, the
deterrent effect of the probation, the danger of marijuana on the public, and the
fact it was a “for profit activity” since she only intended to sell the drugs. For
these reasons, we find the district court did not abuse its discretion in refusing to
order a deferred judgment, nor abuse its discretion in ordering consecutive
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sentences and $30,685 in costs, fines, surcharges, and restitution as part of
Kelley’s probation.
AFFIRMED.