IN THE COURT OF APPEALS OF IOWA
No. 14-0720
Filed March 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JONATHAN MICHAEL KAINE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Defendant appeals from his sentence for possession of a controlled
substance with intent to deliver (marijuana). AFFIRMED IN PART, VACATED IN
PART, AND REMANDED WITH DIRECTIONS.
William Bushell of Bushell Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Brad Waltz,
Assistant County Attorney, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.
Jonathan Kaine appeals from his sentence for possession of a controlled
substance with intent to deliver (marijuana), in violation of Iowa Code section
124.401(1)(d) (2011). Kaine maintains the district court abused its discretion by
not granting his request for a deferred judgment. He also maintains the district
court erred in imposing a ten dollar drug abuse resistance education (DARE)
surcharge. Because we find the district court considered relevant factors and did
not abuse its discretion, we affirm the district court’s imposition of a suspended
sentence. We vacate the illegal part of the sentencing order imposing a ten
dollar DARE surcharge and remand for entry of a corrected sentencing order.
I. Background Facts and Proceedings.
On January 27, 2012, the State filed a trial information charging Kaine with
one count of possession of a controlled substance with intent to deliver
(marijuana).
On February 10, 2014, Kaine entered an Alford plea1 of guilty.
Sentencing was held on April 28, 2014. The State recommended Kaine
receive a suspended five-year prison sentence. Kaine maintained he was
eligible for a deferred judgment and requested the court grant it. During the
sentencing colloquy, the district court stated:
The thing that troubles me—and I guess there are two things
that trouble me about you, Mr. Kaine. And I know that sequencing
is such that you are eligible for a deferred judgment. But you’re
trafficking drugs for a number of years, and this was the substantial
part of your income, what you did to financially survive.
I think of a deferred judgment as being something that is
special, an individual makes a mistake that is out of character, and,
1
See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
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thus, he qualifies for a deferred judgment. You’re trafficking drugs
for a period of years. This isn’t hardly out of character for you.
What am I missing?
Kaine then responded with why he believed he was a good candidate for a
deferred judgment. The court replied:
Well, your character seems to be reflective of the record that
you have. And you don’t have a bad record. I mean, it’s not
anything to be proud of, apparently minor driving offenses,
suspended licenses, one—at least one possession of marijuana,
and now the big-time conviction down in Benton County[2] and this
conviction. I just don’t know that you’re a suitable candidate for a
deferred judgment.
And so I’m going to err if at all on the side of caution, and the
caution would be to the charge of possession with the intent to
deliver contrary to 124.401(1)(d), of the Code, a Class D felony.
I will order you committed to the custody of the director of
the Department of Corrections for [a term] not to exceed five years.
I will suspend that sentence and place you on probation to the
Department of Correctional Services for two to five years.
And your supervision may be by the Sixth Judicial District
down in Benton County. I’ll impose a fine of $750 plus a 35 percent
surcharge and suspend that. Your driving privileges will be
suspended for 180 days. There will be a $125 law enforcement
assessment and a $10 DARE assessment.
Kaine appeals.
II. Standard of Review.
Where, as here, the defendant does not assert the imposed sentence is
outside the statutory limits, we review for an abuse of discretion. State v.
Thomas, 547 N.W.2d 223, 225 (Iowa 1996). An abuse of discretion is found only
when the sentencing court exercises its discretion on grounds or for reasons
clearly untenable or to an extent clearly unreasonable. Id. We review both the
2
Here, the court is referencing Kaine’s previous guilty plea for manufacturing of a
controlled substance (marijuana), in violation of Iowa Code section 124.401(1)(d).
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court’s stated reasons made at the sentencing hearing and its written sentencing
order. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).
We review challenges to the legality of a sentence for corrections of errors
at law. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).
III. Discussion.
A. Deferred Judgment.
Kaine maintains the district court abused its discretion in not granting his
request for a deferred judgment. He argues the sentencing order does not reflect
factors or circumstances the district court relied on in denying his request for a
deferred judgment.
We review both the court’s stated reasons made at the sentencing hearing
and its written sentencing order. See Lumadue, 622 N.W.2d at 304. During the
sentencing colloquy, the district court expressly considered Kaine’s criminal
history as well as his admission in the presentence investigation that he had
been selling marijuana as his primary source of income for several years. While
there are certainly more factors the court could have considered before denying
Kaine’s request, “the failure to acknowledge a particular sentencing circumstance
does not mean it was not considered.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.
App. 1995). Additionally, the court is not “required to specifically acknowledge
each claim of mitigation urged by a defendant.” Id.
We find the district court did not abuse its discretion when rejecting
Kaine’s request for a deferred judgment.
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B. DARE Surcharge.
Kaine asserts, and the State agrees, the district court erred in assessing a
ten dollar DARE surcharge. Iowa Code section 911.2 provides, “[T]he district
court shall assess a drug abuse resistance education surcharged of ten dollars if
a violation arises out of a violation of an offense provided for in . . . chapter 124.”
However, “The surcharge shall not be assessed for any offense for which the
court defers the sentence or judgment or suspends the sentence.” Iowa Code
§ 911.2(2). Because the district court suspended Kaine’s sentence, the DARE
surcharge was not provided for by law, and the district court erred in assessing
the surcharge. We vacate this portion of Kaine’s sentence.
IV. Conclusion.
Because we find the district court considered relevant factors and did not
abuse its discretion, we affirm the district court’s imposition of a suspended
sentence. We vacate the illegal part of the sentencing order imposing a ten
dollar DARE surcharge and remand for entry of a corrected sentencing order.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH
DIRECTIONS.