State of Iowa v. Jay Salge

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-1263
                             Filed January 12, 2022


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAY SALGE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Jennifer S.

Bailey, District Associate Judge.



      Jay Salge appeals the imposition of consecutive sentences. AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.




      Heard by Bower, C.J., and Greer and Badding, JJ.
                                         2


BOWER, Chief Judge.

       Jay Salge pleaded guilty to fifty-eight counts of sexual exploitation of a

minor, in violation of Iowa Code sections 728.1(7) and 728.12(3) (2020). Salge

argues the consecutive sentences imposed are grossly disproportionate to his

crimes under the United States and Iowa Constitutions. Salge also contends the

district court abused its discretion by failing to give adequate reasons for imposing

consecutive prison sentences.      Salge was not given a mandatory minimum

sentence and is immediately eligible for parole. We therefore reject his claim of

cruel and unusual punishment. We discern no abuse of the court’s sentencing

discretion. We affirm.

I. Background Facts and Proceedings.

       Salge pleaded guilty to possessing fifty-eight images of minors engaged in

prohibited sex acts.     Those images included adults performing sex acts on

children, children performing sex acts on children, and children engaged in

bestiality. Under the plea agreement, Salge could argue for any legal disposition;

in exchange, the State agreed not to file additional charges or refer the matter for

federal prosecution.

       Salge was forty-three years old at the time of sentencing. According to the

presentence investigation (PSI) report, Salge was in foster care prior to being

adopted at age two by the Salge family.         His father indicated Salge has a

“marginally retarded IQ” and many learning disabilities. Salge has been involved

in a number of mental-health institutions and treatments over his lifetime. At the

time these charges were being investigated, Salge was living on his own in an
                                         3


apartment, receiving Social Security Disability Income (SSDI), and receiving

assistance from a social worker.

       At sentencing, the State urged the court to follow the recommendation in

the PSI report and impose the maximum sentence on each charge (two years),

with the sentences to be served consecutively. Salge’s counsel acknowledged

Salge “will need services no matter where he is, whether he’s in prison or in a

home some place.” Salge asked that the court consider probation and placement

in a secure facility with treatment.       The district court, however, imposed

consecutive terms of imprisonment with no mandatory minimum and immediate

parole eligibility. Salge now appeals.

II. Scope and Standards of Review.

       Salge’s appeal is allowed despite Iowa Code section 814.61 because he is

appealing only the sentences imposed. See State v. Damme, 944 N.W.2d 98, 100

(Iowa 2020) (“We hold that the good-cause requirement is satisfied in this context

when the defendant appeals a sentence that was neither mandatory nor agreed to

in the plea bargain.”).

       We review the sentences imposed for correction of errors at law. State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

       [T]he decision of the district court to impose a particular sentence
       within the statutory limits is cloaked with a strong presumption in its
       favor, and will only be overturned for an abuse of discretion or the
1Section 814.6 provides:
      1. Right of appeal is granted the defendant from:
             a. A final judgment of sentence, except in the following cases:
             ....
             (3) A conviction where the defendant has pled guilty. This
      subparagraph does not apply to a guilty plea for a class “A” felony or
      in a case where the defendant establishes good cause.
(Emphasis added.)
                                         4


       consideration of inappropriate matters. An abuse of discretion will
       not be found unless we are able to discern that the decision was
       exercised on grounds or for reasons that were clearly untenable or
       unreasonable.

Id. (internal citation omitted).

       When a defendant raises a constitutional challenge to a sentence, our

review is de novo. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

III. Discussion.

       A. Constitutional challenge. Iowa Code section 728.12 makes it a crime to

“possess a visual depiction of a minor engaging in a prohibited sexual act or the

simulation of a prohibited sexual act.”      Iowa Code section 728.1(7) defines

“prohibited sexual act” and includes “[a]n act of bestiality involving a minor,”

“fondling or touching the pubes or genital of a minor,” and “[n]udity of a minor for

the purpose of arousing or satisfying the sexual desires of a person who may view

a visual depiction of the nude minor.”

       Section 728.12(3) defines the unit of prosecution for the offense of sexual

exploitation of a minor:

       A visual depiction containing pictorial representations of different
       minors shall be prosecuted and punished as separate offenses for
       each pictorial representation of a different minor in the visual
       depiction. However, violations of this subsection involving multiple
       visual depictions of the same minor shall be prosecuted and
       punished as one offense.

Here, Salge admitted he was in possession of images of fifty-eight different infant-

to-prepubescence minors engaged in prohibited sexual acts.

       Salge does not claim the statutory two-year sentence for the offense of

sexual exploitation of a minor is unconstitutional.     Rather, Salge argues the
                                         5


imposition of a 116-year term is a “de facto life sentence” and grossly

disproportionate to his crimes.

      Salge cites State v. Null, 836 N.W.2d 41 (Iowa 2013), in support of his

contention that we should consider his aggregate sentence. Null involved the

question of cruel and unusual punishment for juvenile offenders. 836 N.W.2d at

76–77. As explained in State v. Graham:

      The Cruel and Unusual Punishment Clause “embraces a bedrock
      rule of law that punishment should fit the crime.” The notion that
      punishment should fit the crime, however, is an abstract generality.
      The United States Supreme Court has struggled to develop a
      coherent framework to implement that generality.
               Three recent United States Supreme Court cases have
      explored the application of the Cruel and Unusual Punishment
      Clause to juvenile offenders. In Roper [v. Simmons, 543 U.S. 551
      (2005)], the Court held the Eighth Amendment categorically
      prohibited the imposition of the death penalty on defendants who
      were juveniles at the time of the offense. The Roper Court analyzed
      “the evolving standards of decency that mark the progress of a
      maturing society” by seeking evidence of a national consensus and
      by bringing its own independent judgment to bear on the question.
      The Court also articulated the broad areas of fundamental difference
      between juvenile and adult defendants. Juveniles lack maturity and
      often have “an underdeveloped sense of responsibility . . . [which]
      often result[s] in impetuous and ill-considered actions and decisions.”
      “[J]uveniles are more vulnerable or susceptible to negative
      influences and outside pressures, including peer pressure.” Finally,
      “the character of a juvenile is not as well formed as that of an adult.
      The personality traits of juveniles are more transitory, less fixed.”
               These fundamental differences mean that juveniles lack the
      same moral responsibility as adults and are less likely to have an
      “irretrievably depraved character” due to the transitory nature of
      youth. Because of this, some penological justifications apply with
      less force to juvenile defendants—retribution, because juveniles lack
      the same moral culpability, and deterrence, because juveniles often
      do not engage in a cost-benefit analysis that attaches any real weight
      to punishment. In a later case, the Court also explained that the goal
      of incapacitation applies with less force toward juveniles, because
      very few juveniles are truly incorrigible and it is exceedingly difficult
      to determine which rare juvenile is so.
               Our cases have extended the reasoning of Roper, Graham [v.
      Florida, 560 U.S. 48 (2010)], and Miller [v. Alabama, 567 U.S. 460
      (2012)] under the Iowa Constitution, article I, section 17. As we
                                         6

      explained in [State v.] Sweet, [879 N.W.2d 811 (Iowa 2016),] our
      cases have embraced the general principles of the Roper–Graham–
      Miller trilogy and have applied them to de facto life sentences, very
      long sentences, and relatively short sentences.

897 N.W.2d 476, 483–84 (Iowa 2017) (citations omitted).

      But, Salge is a forty-three-year old adult and provides no authority that we

should extend the juvenile sentencing considerations to adults. In fact, our case

law suggests otherwise:

             In State v. Jones, 298 N.W.2d 296 (Iowa 1980), we held that
      consecutive sentences, even if lengthy, do not constitute cruel and
      unusual punishment. 298 N.W.2d at 300. We concluded there was
      no Eighth Amendment violation where a consecutive twenty-five-
      year sentence was imposed on a defendant who was already serving
      sentences totalling fifty-one years. Id.
             In [State v.] Lara, we held that a sentence that is not otherwise
      cruel and unusual does not become so simply because the
      defendant must serve the entire sentence. 580 N.W.2d [783,] 785
      [(Iowa 1998) (citation omitted)]. In Lara, the defendant was
      sentenced to concurrent, indeterminate twenty-five-year terms for
      eleven convictions of first-degree robbery. Id. at 784. These
      sentences were subject to the statutes requiring that the defendant
      serve one-hundred percent of his sentence and receive a maximum
      reduction of fifteen percent for good conduct time. Id. (citing Iowa
      Code §§ 902.12, 903A.2). We held that the defendant’s sentences
      did not lead to an inference of gross disproportionality given the risk
      of death or serious injury involved in the commission of first-degree
      robbery. Id.; see also State v. Hoskins, 586 N.W.2d 707, 709 (Iowa
      1998) (holding defendant’s “ten-year sentence imposed upon a
      conviction of second-degree robbery, of which [defendant] is
      required to serve 100%, [does not] lead to an inference of gross
      disproportionality”).
             We think the result is the same in the present case. August
      committed two serious crimes. The fact he will have to serve his
      sentences consecutively does not make these otherwise permissible
      sentences disproportionately severe. There is nothing cruel and
      unusual about punishing a person committing two crimes more
      severely than a person committing only one crime, which is the effect
      of consecutive sentencing.
                                           7

State v. August, 589 N.W.2d 740, 744 (Iowa 1999).             Here, the district court

imposed no mandatory minimum, and Salge is immediately eligible for parole. We

are not persuaded the court imposed a de facto life sentence.

       Salge argues the same concerns related to juvenile offenders are present

here because he is intellectually disabled. While the United States Supreme Court

has eliminated the death penalty for the intellectually disabled, the Court has also

said that intellectually disabled persons “should be tried and punished when they

commit crimes.” Atkins v. Virginia, 536 U.S. 304, 306, 321 (2002). The record is

far from clear that Salge is intellectually disabled.2 And unlike the “transitory nature

of youth,” Salge has a history of mental illness and poor impulse control. Salge

acknowledges the Supreme Court has observed intellectual disability is a “double-

edged sword” because it may be mitigating for purposes of culpability and an

indicator of future dangerousness. See id. at 321; see also Penry v. Lynaugh, 492

U.S. 302, 324 (1989) (“Penry’s mental retardation and history of abuse is thus a

two-edged sword: it may diminish his blameworthiness for his crime even as it

indicates that there is a probability that he will be dangerous in the future.”).

       Salge argues the 116-year sentence is grossly disproportionate to his

crimes in violation of the Eighth Amendment and article I, section 17 of the Iowa

Constitution.

       We use a three-prong test to determine whether a sentence is
       grossly disproportionate under the Iowa and United States
       Constitutions. First, we examine “whether the sentence being
       reviewed is ‘grossly disproportionate’ to the underlying crime,” which
       “involves a balancing of the gravity of the crime against the severity
       of the sentence.” This is the threshold question, and we do not
       inquire any further if the challenged sentence does not appear
2 The record shows he has mental illness and his father informed the presentence
investigator Salge has a “marginally retarded IQ.”
                                            8


      grossly disproportionate based on this balancing. If the threshold is
      met, we then engage in the second step of our analysis in which we
      partake in an intrajurisdictional analysis, comparing the challenged
      sentence to sentences of other crimes in our jurisdiction. Finally, we
      perform an interjurisdictional review, surveying the sentences for
      similar crimes in other jurisdictions.

State v. Harrison, 914 N.W.2d 178, 202–03 (Iowa 2018) (citations omitted).

      Salge contends he has met the threshold test of the gross disproportionality

analysis by establishing that his personal culpability (based on his intellectual

disability) and the nature of the offense create an inference of gross

disproportionality when considering the harshness of the 116-year prison sentence

imposed.

      The State contends Salge’s 116-year prison sentence is not grossly

disproportionate to his crime of committing fifty-eight counts of possessing child

pornography. The State notes Salge is immediately eligible for parole and earned-

time credit. The State also asserts Salge cannot meet the threshold test as a two-

year sentence with immediate parole eligibility is not disproportionate to

possessing child pornography and aggregating sentences does not make a

constitutional sentence unconstitutional.

      The State further argues Salge’s sentence is not grossly disproportionate

under the Iowa Constitution. First, the State contends Salge’s argument that his

intellectual disability should be a unique factor that could make a sentence grossly

disproportionate cannot help him because he offered no evidence at sentencing

that he has an intellectually disability. The PSI only discussed his “marginally

retarded IQ” and “mental illness.” Second, the State asserts this court should

decline Salge’s invitation to abandon the threshold test as he failed to show why

this court should change the law. Finally, the State contends that even applying
                                         9


the more stringent review afforded under the Iowa Constitution, only a rare case

will pass the threshold test. The State argues this is not such a case.

       We are to “keep in mind certain general principles” in determining “whether

the challenged sentence is grossly disproportionate.” Id. at 203.

       “The first is that we owe substantial deference to the penalties the
       legislature has established for various crimes.” Second, though we
       provide a more demanding review of a defendant’s sentence for
       gross disproportionality under the Iowa Constitution than available
       under the United States Constitution, “it is rare that a sentence will
       be so grossly disproportionate to the crime as to satisfy the threshold
       inquiry and warrant further review.” Third, “a recidivist offender is
       more culpable and thus more deserving of a longer sentence than a
       first-time offender.” Finally, we analyze the facts of each case in
       reaching our threshold determination because they “can ‘converge
       to generate a high risk of potential gross disproportionality.’”

Id. (citations omitted)

       Salge argues we should eliminate the threshold test and find that no one

factor is dispositive in the gross proportionality analysis. The Iowa Supreme Court

has applied the threshold test to an Iowa Constitutional challenge as recently as

2018. Id.; State v. Wickes, 910 N.W.2d 554, 572–73 (Iowa 2018). This court is

“not at liberty to overrule controlling supreme court precedent.” State v. Beck, 854

N.W.2d 56, 64 (Iowa Ct. App. 2014).

       Salge’s claim of cruel and unusual punishment fails on the threshold

question.   With respect to the offense of sexual exploitation of a minor, our

legislature has determined each image of a different child constitutes a separate

offense. Salge admitted to possession of fifty-eight images depicting very young

children engaging in a prohibited sexual acts. See Iowa Code § 901.8 (“If a person

is sentenced for two or more separate offenses, the sentencing judge may order

the second or further sentence to begin at the expiration of the first or succeeding
                                         10


sentence.”).   “There is nothing cruel and unusual about punishing a person

committing [fifty-eight] crimes more severely than a person committing only one

crime, which is the effect of consecutive sentencing.” August, 589 N.W.2d at 744.

Salge faces a concededly long term of years—but the court imposed no mandatory

minimum and Salge is immediately eligible for parole. We do not conclude this is

the “rare” case where the punishment is so grossly disproportionate as to be

unconstitutional.

       B. Sentencing discretion. We turn to Salge’s claim the court abused its

sentencing discretion in imposing consecutive sentences and giving inadequate

reasons for doing so. A sentencing court must state their reason for imposing a

particular sentence on the record. Iowa R. Crim. P. 2.23(3)(d); see State v. Barnes,

791 N.W.2d 817, 827 (Iowa 2010). It must also state on the record its reason for

imposing multiple sentences consecutively. State v. Jacobs, 607 N.W.2d 679, 690

(Iowa 2000). The reasons provided need not be detailed but must be sufficient “to

allow appellate review of the trial court’s discretionary action.” State v. Hill, 878

N.W.2d 269, 274 (Iowa 2016) (citation omitted). “Sentencing courts should also

explicitly state the reasons for imposing a consecutive sentence, although in doing

so the court may rely on the same reasons for imposing a sentence of

incarceration.” Id. at 275.

       Here, the sentencing court engaged in a lengthy discussion of the reasons

for the sentences.

       All right. The court’s considered all the sentencing provisions
       provided for in Iowa Code chapters 901 and 903, and my sentence
       is based upon my judgment of what will provide the maximum
       opportunity for your rehabilitation and at the same time protect the
       community from further offenses by you and others.
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        I note quite a few things. I would note for the record as far as
my reasons for my sentence and as far as general sentencing
parameters, I would note several rationales apply to this case,
including incapacitation, specific and general deterrence,
rehabilitation, and retribution.
        But as far as permissible sentencing factors, I would note your
age, at forty-three years old; your prior record of convictions. I would
note [defense counsel’s] indication that many of them, if not all of
them, were assaults. I note one trespass. Most of them are simple
misdemeanors between the years of 1997 and 2007 were your
offense dates. Over that period of time, there were twelve assaults,
including two serious assaults and one assault on a peace officer.
        I would also note [defense counsel’s] indication that at least a
portion of that time you were in facilities, which would—which would
go along with some of the indications in the [PSI] of which [your
father] indicated that you were removed from several of the facilities
for intimidation of staff and aggressive tendencies.
        I would note your employment circumstances, that you have
not ever held employment due to your disability, that you receive
SSDI since you became an adult for mental illness.
        Your family circumstances, of which [your father] set forth in
the “Family Dynamics.” In any respects, that you were in foster care
the first two years of your life until your biological parents’ parental
rights were terminated and you were adopted by the Salge family, of
which you indicated your relationship status is good, but at least you
appear at least to [your father] that you inherited the mental illness
of your mother and father—your biological mother and father.
        I would also note the nature of the offense, of which, of course,
the court has a lot to indicate in that. In looking at the [fifty-eight]
counts—and, again, I note that [thirty-six] of the [fifty-eight] are pure
nudity—I really categorized them. And these are the highlights,
again, noting that some of these are only based on descriptions
because the court has not seen all [fifty-eight].
        But there are multiple in some of these categories, but an
indication or some of the images as pleaded guilty to by you: Anal
intercourse by an adult male to a male child, nudity, exposing female
vagina, male to female anus, and male erect penis, all children. Oral
sex on an adult male by both boys and girls, vaginal intercourse with
young girls by an adult male, forced masturbation by a child; of
course, nudity.
        And I would specifically note that nudity involves nudity from
infancy. There is at least one infant that was shown in the [one] of
the [twelve] exhibits that were now admitted all the way up to
prepubescent girls.
        There also involved bestiality involving vaginal and oral sex
with an animal, as well as manual stimulation of an animal, of vaginal
intercourse for stimulation between a male and female child, child on
child, a few depictions of adult males ejaculating on a child. In one
                                    12


of the exhibits admitted it was clearly a very young child on her. And
finally a child that was bound with a jump rope being digitally
penetrated in her anus and vagina by presumably an adult.
        So with regard to the images themselves, I have several
observations. One, the volume. We’re looking at [fifty-eight] counts.
Two, the ages of the children, ranging from infancy to prepubescent
toddlers, at least in the images that‘s been admitted and as indicated
in the approximate ages it would be a complete lack of development
of an adult male or female. It was clearly young children that was in
your interest and your wheelhouse.
        And the depravity of the pictures themselves, again, noted
that the [thirty-six] of the [fifty-eight] were pure nudity, but the
remaining [twenty-two] including bondage, bestiality, anal rape,
vaginal rape, forced penetration, forced copulation, and forced
nudity. So those images that you have pleaded guilty to and your
possession of them causes the court great concern.
        I would note your living arrangement as is indicated, as well
in your institutionalization for . . . up until the last five or six years.
You’ve indicated that you’ve been previously diagnosed with
depression, anxiety, and bipolar disorder. I note that you are a high
school graduate and with the caveat that [defense counsel]
indicated.
        I do also note your treatment at Woodward Resource Center,
of which there wasn’t a lot of information indicated about that
particular placement, but there was an indication of some level of
appropriate sexual behavior treatment or education.
        I also note that you were, yourself, a victim, at least as recited
by you. You indicated that five years ago you were forced by an adult
male to perform oral sex. That was in part of your [PSI] report. I also
note the recommendation, of course, of the parties, the arguments
of counsel, and the [PSI] recommendation as well.
        I also note the plea agreement, which specifically indicates
that by pleading guilty and open to these charges that you are—the
State has agreed to not file additional counts or additional charges
or federal prosecution.
        The court has concern insofar as, you know, as noted by
[defense counsel] there’s no argument that you made or
disseminated the photos. This isn’t knowingly possessing child
pornography in a dissemination crime. And as you indicated, this
isn’t a victimless crime.
        And that’s—I hope that you understand the gravity and it’s not
just words that you’re saying. I hope that you understand that—that
these children are victims of you even though you weren’t the one[]
putting them in the photographs because you are feeding a market
for child pornography and for child victimization.
        And I agree with [the prosecutor]. In looking at . . . several
images that were admitted—that in looking at the face of the children
and their eyes, it’s haunting. Not just the act themselves, but you
                                   13


can almost see the trauma or even some of them the vacancy in the
situation that they find themselves in.
        I note your record of assaults—although certainly you have no
felony conviction—you’ve been fined; you’ve been given the benefit
of informal probation; you’ve been given jail sentences, never a
prison sentence, but you’ve had that continuum of penalties in your
past. I would note my concern that these assaults show a lack of
impulse control, a lack of respect for the person of another. That is
concerning, coupled with your apparent sexual appetite for very
young children or at least viewing images of very young children.
        You know, there was an indication by [your father] . . . . “He
can read people very well and knows who to respect and who he can
int[imidate]. He had to leave most of the facilities that he was placed
in for intimidation of staff.”
        That shows a level of observation by your father that arguably
may know you better than most of really—despite your mental
capacity, of which was referred to in the PSI, some level of
manipulation or awareness of who you should say what to to get the
results that you want and who is vulnerable, of which children are
among the most vulnerable in our community.
        And so in fashioning a sentence, I do believe that probation
isn’t appropriate for you. The question is not whether you should
receive a prison sentence, but how long of a prison sentence you
should receive. And I do believe you need to be incarcerated to
protect the community and the most vulnerable within our
community, our children, very small children, in fact.
        I believe that my sentence will also serve specific deterrence,
insofar as deterring you from committing similar offenses, and
general deterrence from both individuals who manufacture child
pornography and individuals that purchase, download, consume
child pornography.
        I would note, as I did before, your prior institutionalization and
your prior participation in a sex offender curriculum. But your
rehabilitation is extremely important to the court. Clearly the toxic
mix of your sexual predilection and viewing habits, coupled with your
mental illness and your lack of impulse control is particularly
dangerous if not in a controlled environment such as institutions or
penal facilities.
        And [the prosecutor] touched on retribution, and really the
want for punishment that is just based upon an offense like this. I
would note an appellate case, State v. Osborn, which was upheld. It
was a court case from 2016, [No. 16-1066, 2018 WL 4922938 (Iowa
Ct. App. Oct. 10, 2018)] . . . : “As a consumer of prohibited content,
he is a market participant driving demand for the creation of
prohibited content. These crimes are not victimless.” . . .
        And so I would note in that particular case, [the district court]
categorized the offenses, really there are some that are more
salacious and some that are less salacious and whether the
                                         14


       sentence was consecutive or concurrent was based upon, really, the
       perceived offensiveness of the photographs themselves.
               Again, in your case, [twenty-two] of the [fifty-eight] counts
       would include items that were not expressed nudity with no other
       components as I previously indicated on the record. You know, and
       the court in considering all of these factors, you know, is somewhat
       tempted to do [as the Osborn court did]. And I note that was upheld
       as far as being an appropriate way to hand down judgment.
               But in your case, I wish to look at every single count. And I—
       And I think I’ve laid it forth, but the volume, the depravity, your
       particular offender characteristics, I believe that you are a great risk
       to the community, and I take that in consideration in knowing that you
       will also be subject to the registry requirements, in the tier 3 sex
       offender, as well as a ten-year special sentence. But it is what I
       believe is appropriate.
               ....
               It is further the judgment of the court that you be and are
       hereby committed to the custody of the Director of Division of Adult
       Corrections, State of Iowa for a term not to exceed two years for each
       count. . . .
               . . . These counts will run consecutive one to another. And
       the gravity of that is not lost on this judge, that I am levying a 116-
       year sentence upon you with an additional ten-year sentence. The
       reasons for my sentence have been clearly outlined by the court.

       The district court gave more than enough information for us to determine its

reasons for the sentence, and those reasons were not unreasonable or untenable.

We are able to discern the court’s reasoning for consecutive sentences. The

district court considered the Osborn court’s categorization of offenses, but

concluded consecutive sentences were appropriate in light of the “volume, the

depravity, your particular offender characteristics,” and the risk Salge posed to the

community. The court stated: “I wish to look at every single count.” We find no

abuse of the court’s sentencing discretion.

       AFFIRMED.