IN THE COURT OF APPEALS OF IOWA
No. 16-1427
Filed March 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KOREY RANDALL ROSS,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Joel W. Barrows,
Judge.
Korey Randall Ross appeals the sentence imposed by the district court
following his guilty plea to possession of a firearm by a felon as a habitual
offender. AFFIRMED.
Sharon D. Hallstoos, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, Presiding Judge.
Korey Randall Ross appeals the sentence imposed by the district court
following his guilty plea to possession of a firearm by a felon as a habitual
offender. “We review sentencing decisions for abuse of discretion or defect in
the sentencing procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).
“An abuse of discretion will only be found when a court acts on grounds clearly
untenable or to an extent clearly unreasonable.” Id. (quoting State v. Leckington,
713 N.W.2d 208, 216 (Iowa 2006)). “We give sentencing decisions by a trial
court a strong presumption in their favor.” Id. When, as here, the sentence given
“falls within the statutory parameters, we presume it is valid and only overturn for
an abuse of discretion or reliance on inappropriate factors.” Id. at 554. “To
overcome the presumption [of validity], we have required an affirmative showing
the sentencing court relied on improper evidence.” Id. (alteration in original)
(citation omitted).
Ross first argues the presentence investigation (PSI) report impermissibly
contained, and thus the district court impermissibly considered, dismissed
weapons charges and a victim-impact statement relating to a charge that was
dismissed as part of the plea agreement. The record reflects the district court
read and considered the PSI report and recommendation submitted prior to
sentencing. At the sentencing hearing, Ross’s attorney stated:
First of all, [Ross] had some comments on the criminal record
portion. I assured him that you do not take into account anything
that’s been dismissed. And if you look carefully I put lines through
them when they’re dismissed. He really hasn’t been charged or
found guilty or pled guilty to very many charges.
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The district court confirmed, “the Court does not consider any criminal
history in the PSI that did not result in a conviction or an adjudication of
delinquency and I have reviewed the PSI carefully.” As to the victim-impact
statement regarding a charge dismissed as part of the plea, the district court
specifically informed Ross’s counsel, “[Ross is] here based on a plea of
possession of a firearm by a felon. That’s the only charge I’m considering. I’m
considering what’s in the PSI . . . and what I hear here today and that’s it.” The
district court reiterated, “I’m not considering what his original charge was.
Period. That’s inappropriate. I am not doing that.” See State v. Formaro, 638
N.W.2d 720, 725-26 (Iowa 2002). The record does not reflect that the district
court relied upon any improper evidence in reaching its sentence determination.1
Ross next argues the district court abused its discretion by basing its
sentence on Ross’s “numerous failures on supervision.” The district court stated:
But as I assess this case with what I’ve heard today and what I
read in the PSI and when I see your criminal history right now this
is just not a case that’s a probation case. It just isn’t. I can’t ignore
your criminal history. What’s even more troubling to me right now I
think are your numerous failures on supervision including some
pretty significant failures on supervision. So for those reasons and
because of the recommendation of the PSI author, my sentence is
going to be as follows . . . .
Ross admits he has two prior convictions for probation violations; thus, he
does not contest the court’s consideration of this fact. Instead, Ross alleges the
district court abused its discretion when using it as the “sole factor” for his
1
The district court indicated it had considered the PSI sentencing recommendation in
reaching the sentence imposed—a recommendation that presumably took into account
the information impermissibly contained in the PSI report. However, the district court
clearly indicated it did not consider this impermissible information, which the district court
was clearly cognizant of when considering the PSI sentencing recommendation.
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sentence. Contrary to Ross’s assertion, his probation violations were not the
“sole factor” considered by the district court in determining his sentence.
Relevant factors to consider when imposing a sentence include: “the nature of
the offense, the attending circumstances, defendant’s age, character and
propensities and chances of [the defendant’s] reform.” Hopkins, 860 N.W.2d at
554 (alteration in original) (citation omitted). Additional factors include “[t]he
defendant’s prior record of convictions and prior record of deferments of
judgment,” “[t]he defendant’s employment circumstances,” “[t]he defendant’s
family circumstances,” “[t]he defendant’s mental health and substance abuse
history and treatment options available in the community and the correctional
system,” “[t]he nature of the offense committed,” and “[s]uch other factors as are
appropriate.” Iowa Code § 907.5(1) (2015).
The district court stated on the record it had read a letter submitted by
Ross, read a letter submitted on Ross’s behalf from a program coordinator
regarding the programs Ross had taken, and viewed certificates regarding the
programs Ross had completed. Before sentencing Ross, the district court heard
both from Ross and his attorney and indicated it “appreciate[d] the comments”
Ross had made. The district court also based its sentence on the permissible
information contained in the PSI report and Ross’s criminal history. The district
court considered numerous factors and explained the reasons for the sentence
imposed. See State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000) (noting “the
reasons need not be detailed” but the district court must provide “at least a
cursory explanation . . . to allow appellate review of the trial court’s discretionary
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action”). On our review, we conclude the sentence imposed by the district court
was not an abuse of discretion.
AFFIRMED.
State of Iowa v. Korey Randall Ross
Combined Opinion