IN THE COURT OF APPEALS OF IOWA
No. 15-2184
Filed May 3, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHAWN KALE NICKERSON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Des Moines County, John M.
Wright, Judge.
A defendant appeals the sentences imposed following his pleas of guilty to
possession of a firearm by a felon and possession of methamphetamine.
SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED
FOR RESENTENCING.
Ryan J. Mitchell of Orsborn, Milani, Mitchell & Goedken, L.L.P., Ottumwa,
for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.
Shawn Nickerson appeals the sentences imposed following his guilty
pleas to possession of a firearm by a felon and possession of methamphetamine.
He contends the district court abused its discretion by failing to give reasons for
rejecting probation or for ordering his prison sentences to run consecutively. We
find the district court provided ample rationale for imposing incarceration, but
because the district court failed to offer any reasons for consecutive sentences,
we vacate that portion of the order and remand for a new sentencing hearing.
I. Facts and Prior Proceedings
On July 22, 2015, the State charged Nickerson with two counts of
possession of a firearm by a felon, a class “D” felony, in violation of Iowa Code
section 724.26(1) (2015), and one count of possession of a controlled substance
(methamphetamine), third offense, a class “D” felony, in violation of section
124.401(5). At a pretrial conference on October 6, the parties reached a plea
agreement. The State agreed to dismiss one of the firearm-possession counts,
and Nickerson agreed to plead guilty to the other firearm-possession count and
an amended count of possession of a controlled substance, second offense, an
aggravated misdemeanor. The parties acknowledged sentencing would be
“open,” but they agreed the State would recommend concurrent terms of
incarceration and Nickerson would ask for probation at the sentencing hearing.
At the November 23, 2015 sentencing hearing, the State, consistent with
the plea agreement, asked the court to order incarceration with the two
sentences to run concurrently. Nickerson, through counsel, requested the court
suspend his sentences and order him to be placed at a residential correctional
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facility as part of his probation. Nickerson also addressed the court personally.
He expressed remorse but also attributed his criminal behavior to his desire to
“help”—Nickerson claimed he had been planning to sell guns and other items to
get money for his family—and to cope with a medical condition as he felt using
methamphetamine helped alleviate his symptoms of multiple sclerosis.
Following Nickerson’s statement, the district court imposed a period of
incarceration not to exceed five years on the firearm-possession count and a
period of incarceration not to exceed two years on the controlled-substance
count, to be served consecutively. Nickerson appeals his sentences.
II. Standard and Scope of Review
We review a district court’s sentencing decision for an abuse of discretion.
See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). “A district court abuses its
discretion when it exercises its discretion on grounds clearly untenable or to an
extent clearly unreasonable.” Id. We consider a district court’s reasoning
“untenable when it is not supported by substantial evidence or when it is based
on an erroneous application of the law.” See id.
III. Analysis
Nickerson argues the district court abused its discretion by sentencing him
to prison without providing any rationale for its choice. The State disagrees,
quoting a lengthy excerpt from the hearing in which the district court explained
the multiple factors behind its sentencing decision.
At sentencing, “the district court must ‘weigh all pertinent matters in
determining a proper sentence, including the nature of the offense, the attending
circumstances, the defendant’s age, character, and propensities or chances for
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reform.’” State v. Thacker, 862 N.W.2d 402, 405 (Iowa 2015) (quoting State v.
Johnson, 476 N.W.2d 330, 335 (Iowa 1991)). The court is also required to state
on the record its reasons for selecting the particular sentence. Iowa R. Crim. P.
2.23(3)(d). Both these requirements “ensure[] defendants are well aware of the
consequences of their criminal actions” and “afford[] our appellate courts the
opportunity to review the discretion of the sentencing court.” Hill, 878 N.W.2d at
273 (quoting State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014)).
The district court satisfied these requirements. While the court did not
provide reasons for imposing incarceration in its written judgment, the court
spoke extensively about its rationale for imposing incarceration at the sentencing
hearing. See Thompson, 856 N.W.2d at 919 (stating the district court may
satisfy the Iowa Rule of Criminal Procedure 2.23(3)(d) requirement “by orally
stating the reasons on the record or placing the reasons in the written sentencing
order”).
The district court explained it had considered Nickerson’s age, thirty-two;
the specific facts of the case; and Nickerson’s sizeable criminal record, which
included past convictions for voluntary absence, assault on a peace officer, and
domestic abuse. The court acknowledged the presentence investigation (PSI)
report, which recommended incarceration. The court also weighed the attorneys’
arguments, Nickerson’s statement to the court, and a detailed letter Nickerson
submitted before the sentencing hearing. Finally, the court recounted
Nickerson’s failure to take advantage of past opportunities to reform his behavior:
I . . . note in the PSI report that there have been many instances of
community intervention where . . . instead of putting you in prison
society has tried to help you, tried to rehabilitate you, within the
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community. And that’s what [your attorney] is suggesting that I do,
is to keep you in the community and let us try some more.
Obviously, it hasn’t worked, because you have pled guilty to
having a firearm in your possession as a convicted felon and to
possessing for a second time a controlled substance. The bottom
line is you don’t get it.
It is apparent from this recitation that all of these considerations prompted the
court to impose incarceration. Given the comprehensiveness of the district
court’s explanation, we find no abuse of discretion related to the imposition of
incarceration.
But the court did not specify the reasons for ordering the sentences to run
consecutively.1 See Hill, 878 N.W.2d at 275 (requiring sentencing courts to
“explicitly state the reasons for imposing a consecutive sentence”). Nickerson
argues, and the State concedes, this omission necessitates a remand to the
district court for resentencing. Because we may not assume the district court’s
rationale for imposing incarceration also applied to its decision to run the
sentences consecutively, we vacate that portion of the sentencing order and
remand to the district court for resentencing. On remand, the district court should
determine whether Nickerson’s sentences should run consecutively or
concurrently and provide reasons for that determination.
SENTENCES AFFIRMED IN PART, VACATED IN PART, AND
REMANDED FOR RESENTENCING.
1
The district court entered judgment in this matter on November 23, 2015, before our
supreme court issued its opinion in Hill, which changed the requirements for courts
imposing consecutive terms. 878 N.W.2d at 275. Although the district court acted
without the guidance of Hill, we find the rule of law announced in Hill applies to this case.
See id. (“The rule of law announced in this case . . . shall be applicable to . . . those
cases not finally resolved on direct appeal in which the defendant has raised the issue,
and all future cases.”).