IN THE COURT OF APPEALS OF IOWA
No. 18-0417
Filed October 10, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
XAVIER ASHBY LOGAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District
Associate Judge.
Xavier Ashby Logan appeals his conviction for assault causing bodily injury.
AFFIRMED.
Andrew C. Abbott of Abbott Law Office, PC, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Kevin R. Cmelik, Israel J. Kodiaga, and
Kelli A. Huser (until withdrawal), Assistant Attorneys General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
2
BOWER, Judge.
Xavier Ashby Logan appeals his conviction for assault causing bodily injury,
claiming the court denied him a deferred judgment because of a fixed policy. We
find the district court did not abuse its discretion in pronouncement of judgment by
engaging in a fixed sentencing policy.
On December 9, 2017, Ashby Logan got into a fight with another man, and
grabbed the other man around the neck, placed him in a chokehold, and obstructed
the other man’s ability to breath, causing red marks around the victim’s neck,
scrapes to his knee, and an abrasion above his eye.
The State charged Ashby Logan with assault with intent to inflict serious
injury in violation of Iowa Code section 708.2(1) (2017), and assault causing bodily
injury in violation of section 708.2(2). A no-contact order was issued between
Ashby Logan and the victim. Ashby Logan and the State reached an agreement,
and Ashby Logan pleaded guilty to assault causing bodily injury in exchange for
the State dismissing the assault with intent to inflict serious injury charge. The
parties jointly recommended a deferred judgment, an assaultive-behavior class,
community service, civil penalty, and an extension of the no-contact order.
On February 16, 2018, the court accepted Ashby Logan’s plea and
sentenced him in a single hearing. The court did not follow the parties’ joint
sentencing recommendation, instead imposing a suspended one year jail term,1
1
The court’s written judgment does not include the suspended jail term. When a
discrepancy exists between the oral pronouncement of sentence and the written judgment,
the oral pronouncement governs. State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995). The
proper remedy for the discrepancy is to remand for entry of a nunc pro tunc order
correcting the clerical error in the written judgment entry. Id. at 529. The court should
enter a nunc pro tunc order correcting the written judgment in this case.
3
one year of probation, the assaultive-behavior class, a fine and accompanying
surcharges. Ashby Logan appeals, claiming the district court failed to consider
alternate dispositions, failed to exercise its discretion in sentencing, and failed to
provide sufficient reasons for the sentence.
“Generally, a sentence will not be upset on appellate review unless a
defendant can demonstrate an abuse of discretion or a defect in the sentencing
procedure.” State v. Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997) (citation
omitted). “We give sentencing decisions by a trial court a strong presumption in
their favor.” 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.” State v. Leckington, 713 N.W.2d 208, 216 (Iowa
2006).
A sentencing court must actually apply its discretion. State v. Jackson, 204
N.W.2d 915, 917 (Iowa 1973). A sentencing court may not select only one
attending circumstance to trigger a fixed sentencing policy; rather, sentencing
courts must give due consideration to all circumstances in the case. State v.
Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). The sentencing court should
engage in an independent consideration in each case and reject the use of fixed
policies. State v. Hager, 630 N.W.2d 828, 834 (Iowa 2001).
Prior to Ashby Logan entering his plea, the court specifically advised Ashby
Logan it was not bound by the State’s recommendation, defense counsel’s
recommendation, or Ashby Logan’s request. Ashby Logan admitted to the court
prior to its acceptance of his plea he could have avoided the altercation and did
not strike the other man to protect himself or a third party.
4
During sentencing, the court asked if the State was recommending a
deferred judgment, to which defense counsel explained it was a joint
recommendation. The court then noted “this is not a crime that I normally would
defer judgment on.” Ashby Logan points to this last comment as indicative of a
personal fixed policy by the court to not grant a deferred judgment for this kind of
case. However, immediately after the court’s comment, the court stated it did not
see mitigating circumstances but would consider any mitigation in its decision. The
court then specifically asked Ashby Logan if he had anything to state to show a
deferred judgment would be appropriate for the assault committed. Ashby Logan
answered “No.”
The court then sentenced Ashby Logan to one year due to the assaultive
circumstance of the case, but suspended the sentence and placed him on
probation because he had no previous criminal history. The judgment and
sentence are well within statutory parameters. The court was not bound by the
plea agreement, and advised Ashby Logan it was not bound by any
recommendations prior to its acceptance of his plea. The court did not impose a
fixed policy in sentencing, but specifically sought mitigating factors to justify
deferring judgment. When asked, Ashby Logan did not provide any reason to
mitigate, and provided no mitigating circumstances to the offense when pleading
to the offense.
The sentence imposed by the court was well within its discretion. See Iowa
Code §§ 903.1(1), 907.3(3). We do not find the court relied on any impermissible
factors in entering its judgment and sentence, and so find no abuse of discretion.
AFFIRMED.