IN THE COURT OF APPEALS OF IOWA
No. 18-1942
Filed December 18, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALEX GREGORY WELCH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, James M.
Drew, Judge.
Alex Welch appeals the sentences imposed upon two felony drug
convictions. AFFIRMED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason
City, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
2
MULLINS, Judge.
Alex Welch was charged by trial information with two counts of possession
of methamphetamine with intent to deliver. The parties reached a plea agreement,
which provided Welch would apply for drug court and the State’s sentencing
recommendation would depend on whether he was accepted into the program. If
not accepted, the State would recommend two indeterminate terms of
incarceration not to exceed ten years, to be served concurrently. If accepted, the
State would recommend that the terms of imprisonment be suspended but served
consecutively, with a condition of Welch’s probation being completion of drug
court. Welch tendered his pleas, and the court accepted them.
Welch was accepted into the drug-court program. At the subsequent
sentencing hearing, the State accordingly recommended the imposition of two
indeterminate terms of imprisonment not to exceed ten years and that they be
suspended and served consecutively, with a condition of Welch’s probation being
completion of drug court. The defense requested the court to follow the State’s
recommendation. The court did so.
Shortly thereafter, the judicial district department of correctional services
filed a report alleging numerous violations of the terms of Welch’s probation.1 Prior
to a revocation hearing, Welch filed a notice of appeal. At the subsequent hearing,
Welch stipulated to the probation violations. The State requested probation
revocation and imposition of the original sentences. The court granted the request.
1
The allegations included testing positive for methamphetamine, failing to attend
drug court, and removing his ankle monitor.
3
On appeal, Welch argues the sentences imposed by the court amounted to
an abuse of discretion because concurrent terms of incarceration would be
sufficient to rehabilitate him and protect society, the sentencing court improperly
failed to provide the rationale for its sentencing decision, and the court
inappropriately failed to consider his rehabilitation and protection of the
community.2 However, because the court adopted the terms of the plea
agreement, the sentence imposed was “not the product of the exercise of trial court
discretion but of the process of giving effect to the parties’ agreement.” State v.
Snyder, 336 N.W.2d 728, 729 (Iowa 1983). Discretion cannot be abused if it is not
exercised. See id. And, because “the purpose of a statement of reasons for
imposition of the sentence would serve no practical purpose,” “any failure by the
court to furnish reasons for the sentence was harmless.” Id. Welch’s buyer’s
remorse is insufficient to warrant relief.3 We affirm the sentences imposed.
AFFIRMED.
2
We note this is not an appeal from the probation-revocation proceeding; it is a
challenge to the original sentence imposed. In any event, the appropriate avenue
for pursuing such a challenge to revocation would be an application for
postconviction relief. See Iowa Code § 822.2(1)(e), (2) (2018); State v. Rheuport,
225 N.W.2d 122, 123 (Iowa 1975) (holding the postconviction-relief chapter is “the
exclusive remedy for challenging revocation of probation”). But see State v.
Farmer, 234 N.W.2d 89, 90 (Iowa 1975) (excepting revocation following deferred
judgments from the general rule); see also State v. Pherigo, No. 18-0951, 2019
WL 6358302, at *1 (Iowa Ct. App. Nov. 27, 2019).
3 Cf. Crasper v. State, No. 16-0595, 2017 WL 510948, at *2 (Iowa Ct. App. Feb. 8,
2017); Puccio v. State, No. 15-1850, 2016 WL 6636799, at *2 (Iowa Ct. App. Nov.
9, 2016); State v. Barnhart, No. 14-0950, 2015 WL 576358, at *2 (Iowa Ct. App.
Feb. 11, 2015); Bucklin v. State, No. 06-1942, 2008 WL 375219, at *3 (Iowa Ct.
App. Feb. 13, 2008).