IN THE COURT OF APPEALS OF IOWA
No. 15-0484
Filed January 27, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LEONARD R. RUSH JR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Henry W. Latham II
(plea) and John D. Telleen (sentencing), Judges.
Leonard Rush appeals his sentence following a guilty plea to lottery ticket
theft. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Sheryl A.
Soich, Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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VOGEL, Presiding Judge.
Leonard Rush appeals his sentence following a guilty plea to lottery ticket
theft. He asserts that because of his severe substance abuse issues he should
have been given a suspended sentenced, placed on probation, and ordered to
reside at a residential treatment facility. We conclude the district court did not
abuse its discretion when imposing a term of incarceration not to exceed five
years. Consequently, we affirm.
On October 28, 2014, Rush was charged with lottery ticked theft, a class
“D” felony, in violation of Iowa Code section 99G.36(1) (2013). A plea hearing
was held on January 9, 2015, and Rush entered a plea of guilty, which the district
court accepted. A sentencing hearing was held on February 26, 2015, during
which the court imposed a term of incarceration not to exceed five years, as
opposed to Rush’s request that he be granted probation. Rush appeals his
sentence.
We review sentencing decisions for an abuse of discretion. State v.
Evans, 672 N.W.2d 328, 331 (Iowa 2003). An abuse of discretion is only found
when the court exercises its discretion on grounds clearly untenable or to an
extent clearly unreasonable. Id. “Sentencing decisions are cloaked with a strong
presumption in their favor. A sentence will not be upset on appellate review
unless the defendant demonstrates an abuse of trial court discretion or a defect
in the sentencing procedure, such as trial court consideration of impermissible
factors.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
When imposing its sentence of a term of incarceration not to exceed five
years, the district court stated:
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Mr. Rush, my duty under the law is to review what’s
available to me in terms of community resources and to determine
what appropriate rehabilitative plan for you would be but I must also
consider that the public interest must be protected. I look at the
seriousness of the crime, the effect that the crimes have on
members of the community, your willingness to accept change and
treatment, and what is available in the community to assist you in
that process. I look at the least restrictive alternatives first and then
proceed with the more restrictive alternatives.
....
[I]n your particular case you still—setting aside as I am those
dismissed charges—you have an extensive criminal history and
what’s particularly problematic to me is that you were released on
parole supervision in February of 2013 and while you were on
release and parole supervision you were again consuming alcohol,
which is a violation of your parole, but more importantly accrued
new arrests including this charge that we’re here on today. I think
there have been many opportunities for rehabilitation that have
been offered to you which haven’t worked and given your prior
criminal history. I’ll grant you that actually the dollar value of what
you stole was not particularly great and probably rather—probably
rather minor, the point is that you are out committing new crimes
shortly after being released from parole supervision and for those
reasons I believe incarceration is appropriate in this matter.
This record establishes the district court did not abuse its discretion when
imposing its sentence. It considered proper factors, and while the presentence
investigation report—which recommended incarceration—showed Rush has
severe substance abuse issues, the court nonetheless did not exercise “its
discretion on grounds clearly untenable or to an extent clearly unreasonable”
when declining to suspend Rush’s sentence or grant him probation. See Evans,
672 N.W.2d at 331. Consequently, we affirm Rush’s sentence pursuant to Iowa
Court Rule 21.26(1)(a) and (e).
AFFIRMED.