IN THE COURT OF APPEALS OF IOWA
No. 16-0594
Filed September 13, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRYAN M. WILLIAMS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,
Judge.
A defendant challenges his sentence for theft. AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., Mullins, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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BLANE, Senior Judge.
Bryan Williams stole his neighbor’s purse in December 2013. The value
of the property exceeded one thousand dollars. Williams was charged with theft
in the second degree, a class “D” felony. See Iowa Code § 714.2(2) (2013).
Williams negotiated a plea agreement with the State. Pursuant to the plea
agreement, if Williams paid restitution in full and obtained a substance-abuse
evaluation by the time of sentencing, the State would reduce the charge to theft
in the third degree. See id. § 714.2(3).
The parties appeared for sentencing on March 10, 2016. There, Williams
requested a one-week continuance to secure payment from an employer for a
job he had done and complete the substance-abuse evaluation. The State
resisted the continuance, but the court ultimately continued the sentencing until
March 18. On March 18, Williams appeared with $400 toward the restitution
requirement but no substance-abuse evaluation. He again asked for a
continuance. The sentencing hearing was continued until April 1. On April 1,
Williams appeared, having partially completed the substance-abuse evaluation
but failing to provide a urine sample and making no additional progress toward
restitution. Again he moved for a continuance. The court recessed for a period
of time to give Williams more time to see if he could fully comply, but when no
further progress was made, the court denied his motion and sentenced Williams
to a term not to exceed five years in prison.
Williams appeals. He argues the district court abused its discretion in
denying his motion to continue sentencing and in sentencing him to prison for a
period not to exceed five years. See State v. Barnes, 791 N.W.2d 817, 827
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(Iowa 2010) (stating sentencing orders are reviewed for abuse of discretion);
State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (stating appellate review of
denial of motion to continue is for abuse of discretion).
A. Continuance
Ordinarily, the decision whether to grant or deny a motion to continue is
within the discretion of a trial court. See Artzer, 609 N.W.2d at 530. We may
reverse a denial of a continuance, however, if “substantial justice will be more
nearly obtained” with the continuance. State v. Ruesga, 619 N.W.2d 377, 384
(Iowa Ct. App. 2000). This requires the moving party to show “good and
compelling cause.” State v. Hardin, 569 N.W.2d 517, 521 (Iowa Ct. App. 1997).
Williams argues good cause exists because the two continuances he was
granted were for but a short time, he had done work to secure funds to pay his
restitution, and he had done everything short of provide a urine sample to get his
substance-abuse evaluation. This falls short of good cause. It is likely the
continuances were short because the requirements were easy. That Williams
was unable or unwilling to do what was necessary demonstrates why the district
court ultimately denied his final motion to continue. Williams had substantial
opportunities to comply with the terms of the plea agreement. He did not do so
despite two continuances afforded him. The district court did not abuse its
discretion in denying his third motion to continue.
B. Sentence
Every sentencing decision must fit the particular person and
circumstances involved in a case. State v. Hildebrand, 280 N.W.2d 393, 396
(Iowa 1979). When a sentencing court has discretion, “it must exercise that
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discretion.” State v. Johnson, 630 N.W.2d 583, 590 (Iowa 2001). If a court fails
to exercise its discretion, the sentence must be vacated and the case remanded
for resentencing. State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003).
Williams argues the court failed to exercise its discretion because he did
not threaten the victim of his theft and did not place her in any fear, the plea
agreement contemplated a reduction in his charge, and the presentence
investigation report (PSI) prepared by the Iowa Department of Correctional
Services recommended he be sentenced to probation. The court stated on the
record it had reviewed the PSI that contained the department’s recommendation.
The court also stated it was considering the seriousness of the crime, the effect
of the crime on the community, Williams’s willingness to accept change and
treatment, the community resources available to assist Williams in the
rehabilitative process, Williams’s lengthy criminal history, his substance-abuse
history and unsuccessful attempts at substance-abuse treatment, his history of
failing to comply with probation, and his limited work history. The district court’s
lengthy and thorough colloquy shows a considered review of options. It is clear
Williams’s criminal history and previous failed attempts at rehabilitation weighed
heavily in the district court’s determination. Those are proper considerations for
a district court to make in imposing sentence. See Iowa Code §§ 901.5, 907.5;
State v. Bentley, 757 N.W.2d 257, 266 (Iowa 2008). Nothing in the record
suggests the court considered improper factors or abused its discretion.
AFFIRMED.