IN THE COURT OF APPEALS OF IOWA
No. 16-0877
Filed March 22, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EARL A. GRIFFIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Henry County, Cynthia H.
Danielson (plea) and John G. Linn (sentencing), Judges.
The defendant appeals from his sentence for possession with the intent to
deliver (marijuana), as an habitual offender. AFFIRMED.
William R. Monroe of Law Office of William Monroe, Burlington, for
appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.
Earl Griffin appeals from his sentence for possession with the intent to
deliver (marijuana), as an habitual offender. He maintains the sentencing court
considered crimes to which he did not admit and that were not proved. He asks
that we remand for resentencing. See State v. Sailer, 587 N.W.2d 756, 762
(Iowa 1998). We consider Griffin’s claim for correction of errors at law. See
State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). We will only upset the
sentence on appellate review if “the defendant demonstrates an abuse of trial
court discretion or a defect in the sentencing procedure such as the trial court’s
consideration of impermissible factors.” Id.
On February 12, 2016, Griffin was charged by trial information with failure
to affix a drug tax stamp (count I) and possession with the intent to deliver
(marijuana) (count II); the State asserted the habitual-offender enhancement
applied to each charge. Shortly thereafter, Griffin entered into a plea deal with
the State whereby he agreed to enter a guilty plea for the charge of possession
with intent to deliver. In return, the State agreed to dismiss count I and agreed
any sentence Griffin received for the charge would run concurrent “to the
sentence that may be reimposed on the Defendant as a result of a parole
violation on previous charge.” The court ordered a presentence investigation
(PSI) report, and sentencing was set for a later date.
At sentencing, on May 2, 2016, the court asked Griffin and his counsel if
there were any additions or corrections to the PSI report. Griffin responded that
one of his listed children was no longer living and claimed that after being
unsuccessfully discharged from alcohol and drug dependency services—as the
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latest report stated—he had reengaged with services. Griffin did not object to
any other parts of the PSI report, and he did not claim any other statements in
the report were inaccurate.
The State recommended “confinement,” in accordance with the PSI
report’s recommendation, “based on [Griffin’s] history, the nature of this crime,
and the other reasons as set forth in the PSI.” Griffin asked the court to place
him on supervised probation. The court then stated:
Mr. Griffin, in making a sentencing decision, the Court
should do that which would provide the maximum opportunity for
your rehabilitation and at the same time protect the community from
further offenses by you and others.
In making my sentencing decision, I’ve carefully reviewed
the Presentence Investigation. I’ve taken into consideration the
comments of the attorneys, your comments, and before coming in
the courtroom, I reviewed the electronic file to see what all was on
the docket.
In connection with making a sentencing decision, it’s my job
to announce the reasons or the factors I considered in sentencing.
In this case, only a few factors support probation; a very long
list of factors support a sentence of confinement.
....
The Court would note that the report from the
probation/parole office is that the defendant has not done well on
parole supervision and pretrial release. The Court notes that this
defendant does not have his high school diploma or a GED. He
owes a fairly substantial amount of money to the judicial branch,
and the purpose of considering that element is only that a fine
wouldn’t deter this defendant; he simply wouldn’t pay it.
....
The Court would note that this defendant has had offered to
him quite a few community-based corrections programs already.
This defendant was on parole supervision at the time he committed
this felony, and this is his third felony, because he’s an habitual
offender.
This defendant has a lengthy record of criminal convictions.
There are traffic convictions, which aren’t a big deal, but, still,
there’s a number. The defendant was convicted of delivery of
marijuana in 2007, again in 2008, again in 2010, and then there’s
the conviction now.
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Finally, the Court notes that the probation office, who would
be in charge of supervising and trying to rehabilitate this defendant,
recommends confinement.
Mr. Griffin, you seem like an awfully nice guy and you’re
sincere, but you can’t keep having felony convictions and not
expect to be punished. Punishment is progressive, which means
it’s greater every time a person repeats that behavior that got them
in trouble in the first place, and I get the idea that if you didn’t learn
your lesson the first, second, or third time, maybe you’ll learn it the
fourth time. I don’t like sending nice guys to prison, but your record
is just—it’s so serious that I have to.
It is the order and judgment of this Court acting pursuant to
the provisions of Iowa Code Sections 124.401(1)(d), 902.8, and
902.9 of the [2016] Code of Iowa that the defendant be and he is
hereby committed to the custody of the Iowa Department of
Corrections for a term of not to exceed 15 years, and to pay the
cost of prosecution.
Griffin maintains the court explicitly relied on statements from Griffin’s
parole officer regarding “other crimes” that Griffin may have committed in
deciding his sentence. Griffin notes that part of the PSI report contains the
following statements:
[Griffin’s parole officer] reported the following regarding the
defendant’s supervision:
Earl is currently on parole supervision for the following cause
numbers: FECR006435, FECR006204, & FECR006015 (Henry
County).
On 08/26/2015, Mr. Griffin was placed on pretrial supervision
for cause number FECR007252 (Henry).
Since being placed on parole supervision, Mr. Griffin has
continued to use marijuana and has admitted to the use of
marijuana.
On 01/09/2014 during a regularly scheduled meeting, the
defendant stated he was involved in a vehicle accident on
01/02/2014. The defendant stated he was driving his girlfriend’s
car and wrecked. He received 2 citations, Driving While Revoked
and Failure to Maintain Control. Both citations were dismissed in
Henry County, Iowa.
On 06/05/2015, Earl was arrested for a number of charges
that can be found his Parole Violation Review dated 08/27/2015.
Earl failed to report to his Parole Officer within 24 hours that he had
contact with law enforcement and was arrested on new charges
(Earl had contact with law enforcement on 06/05/2015).
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On 08/25/2015, Mr. Griffin was arrested for Failure to Affix
Drug Stamp (FECR007252- Count I) and Controlled Substance
Violation (FECR007252- Count II). Mr. Griffin was transported to
the Henry County Jail in Mt. Pleasant, Iowa.
On 09/22/2015, a residence check was completed and a
smoking device (pipe) was found. The pipe was seized as
evidence and turned over to the Henry County Sheriff’s Office.
Mr. Griffin has failed to make monthly payments on both his
Court Fines and his Supervision Fee payments.
Mr. Griffin is currently attending Level 1.0 Extended
Outpatient Treatment at Alcohol Drug Dependency Services in Mt.
Pleasant, Iowa and is working full-time at Shottenkirk in Mt.
Pleasant, Iowa.
First, we note that some of the above statements are purported to be
based on admissions made by Griffin, and when asked if there were any
corrections to the report, Griffin did not challenge the claim that he admitted to
his parole officer he was continuing to use marijuana and was driving his
girlfriend’s car when he was in an accident. The court is allowed to consider
actions the defendant admits doing. See Gonzales, 582 N.W.2d at 517 (“The
defendant's statements to the PSI investigator constitute an admission of his
participation in the delivery offense. . . . The district court did not abuse its
discretion in considering that dismissed charge when sentencing the
defendant.”).
Additionally, insofar as the statement contains unproven or dismissed
charges, we have no reason to believe the sentencing court relied on them.
Griffin focuses on the court’s statement, “The Court would note that the report
from the probation/parole office is that the defendant has not done well on parole
supervision and pretrial release.” But one need not rely on the unproven
offenses to reach that conclusion. Another part of the PSI report notes that the
“[d]efendant was on parole at the time this instance offense was committed.”
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Under “sentencing recommendation,” the preparer of the PSI report states, “It
does not appear that past probation, prison, or parole sentences have deterred
Mr. Griffin from engaging in criminal behavior. Although the Iowa Risk
Assessment-Revised indicates that he presents a low risk to reoffend, a prison
sentence in this cause is justifiable.” Moreover, the court—as well as Griffin’s
parole officer—were aware that Griffin had been unsuccessful during parole, as
the plea agreement between the State and Griffin stated the sentence for the
present case was to run concurrent with his sentence that was being reinstated
due to his violation of his parole and the subsequent revocation.
The court is charged with imposing the sentence that “will provide
maximum opportunity for the rehabilitation of the defendant, and for the
protection of the community from further offenses by the defendant.” See Iowa
Code § 901.5. “Some of the factors pertinent to this determination include the
defendant’s character, his propensity to reoffend, and his chances for reform.”
State v. Knight, 701 N.W.2d 83, 86–87 (Iowa 2005). While the court must not
consider unproven offenses, the court should consider whether there is (or is not)
reason to believe the defendant can be rehabilitated and the community
protected if the defendant is given probation. See Iowa Code § 901.5. Here,
Griffin’s lack of success during previous, similar opportunities is an appropriate
factor to consider. See State v. Wilson, No. 10-1324, 2011 WL 2419918, at *2
(Iowa Ct. App. June 15, 2011) (“It was proper for the court to consider whether
the minimal supervision probation offers would provide the maximum opportunity
for the rehabilitation of the defendant, and provide protection for the community
from further offenses.”).
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Because Griffin has not established the court relied on inappropriate
factors or unproven offenses when sentencing him, we cannot say the district
court erred. We affirm the sentence imposed by the district court.
AFFIRMED.