                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0566
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER ALLEN BEALS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Paul R. Huscher,

Judge.



      Christopher Beals appeals the sentence imposed following his plea of guilty

to possession of a controlled substance, fentanyl, third offense, as an habitual

offender. AFFIRMED.



      Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Vaitheswaran, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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CARR, Senior Judge.

        Christopher Beals appeals the sentence imposed following his plea of guilty

to possession of a controlled substance, fentanyl, third offense, as an habitual

offender. He contends the district court abused its discretion in imposing a term

of incarceration rather than suspending his sentence. Specifically, Beals argues

the district court considered an impermissible factor in sentencing him.

        I. Background Facts and Proceedings.

        Following a 2016 traffic stop, the State charged Beals with possession of a

controlled substance, third offense, and driving while revoked. The parties entered

into a plea agreement that encompassed several criminal cases pending against

Beals; Beals agreed to plead guilty to the possession charge, and the State agreed

to dismiss the driving-while-barred charge.       In addition, the State agreed to

recommend that the court suspend Beals’s sentence and place him on probation

for a three-year period. During the plea colloquy, the district court informed Beals

that the agreement was not binding on the court, which could impose any sentence

up to the maximum, and asked Beals if he understood. After Beals answered

affirmatively and asserted his desire to plead guilty, the district court accepted his

plea.

        Before sentencing, Beals, through counsel, filed a motion in arrest of

judgment, alleging that his guilty plea was not knowing and voluntary because at

the time he entered it, he was “suffering from the effects of involuntary intoxication

by an injection of horse tranquilizers.” Beals later withdrew the motion. Following

a hearing, the court sentenced Beals to a fifteen-year prison term with a three-year

mandatory minimum sentence.
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       II. Scope and Standard of Review.

       Our standard of review is for correction of errors at law. See State v.

Letscher, 888 N.W.2d 880, 883 (Iowa 2016). We will affirm a sentence that is

within the statutory limits absent an abuse of discretion. See State v. Roby, 897

N.W.2d 127, 137 (Iowa 2017). We will find an abuse of discretion only if the court

acted on clearly untenable grounds or to a clearly unreasonable extent. See State

v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2016). Sentencing decisions enjoy a

presumption of validity; Beals must make an affirmative showing that the

sentencing court relied on improper factor to overcome the presumption. See id.

at 554; State v. Knight, 701 N.W.2d 83, 86 (Iowa 2005) (“[T]he use of an

impermissible sentencing factor is an abuse of discretion and requires

resentencing.”).

       III. Discussion.

       In sentencing a defendant, the court must consider which sentence “will

provide maximum opportunity for the rehabilitation of the defendant, and for the

protection of the community from further offenses by the defendant and others.”

Iowa Code § 901.5 (2016). The court must also consider and weigh other pertinent

factors, “including the nature of the offense, the attending circumstances, the age,

character and propensity of the offender, and the chances of reform.” State v.

Formaro, 636 N.W.2d 720, 725 (Iowa 2002). Before deferring or suspending

sentence, “the court must additionally consider the defendant’s prior record of

convictions or deferred judgments, employment status, family circumstances, and

any other relevant factors, as well as which of the sentencing options would satisfy

the societal goals of sentencing.” Id.
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       Beals alleges the sentencing court abused its discretion in failing to grant

the probation term recommended by the prosecutor under the plea agreement,

choosing instead to impose a prison term, because it considered an impermissible

factor in sentencing him. Beals claims the court considered his filing of a motion

in arrest of judgment when it determined his sentence.

       At the sentencing hearing, the court noted the presentence investigation

report set forth a criminal history dating back twenty-two years, which included a

number of probation revocations. The court told Beals, “There is nothing that I can

see in your prior criminal history that would indicate any likelihood that you would

be successful on probation.” The court then asked Beals about allegations that

were made in his motion in arrest of judgment concerning his intoxication at the

time he entered his guilty plea, which contradicted what Beals told the court at the

guilty-plea hearing. The court concluded by stating:

                I have reviewed the presentence investigation report. I have
       considered the circumstances of these offenses, [Beals]’s prior
       criminal history, his potential for successfully completing a probation,
       and the court finds that probation is not warranted in this case;
       that . . . it would unduly minimize the offenses and the circumstances
       of these offenses, and it would not adequately protect the public from
       further criminal offenses by this defendant.

The court imposed a fifteen-year term of incarceration with a three-year mandatory

minimum sentence, as outlined in section 902.8.

       Although the court inquired into the allegations made in Beals’s motion in

arrest of judgment, nothing in the record indicates the court relied on the filing of

the motion or the information contained within it when it sentenced Beals. The

court considered the proper factors in sentencing Beals—his lengthy criminal

history, prior failures to successfully complete probation, and the likelihood he
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would be successful if granted probation again. Weighing these factors against

the need to punish Beals and protect society, the court declined to follow the plea

recommendation and imposed a sentence of incarceration. Nothing in the record

indicates that the court abused its discretion in sentencing Beals by relying on an

improper factor. Because Beals has failed affirmatively to show the district court

relied on an improper factor in sentencing him, we affirm the sentence imposed.

      AFFIRMED.
