                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1397
                                  Filed April 6, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM O. HICKEY III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carol S. Egly, District

Associate Judge.



      A defendant appeals his sentence, following his guilty plea to theft in the

third degree, contending the district court abused its discretion in imposing

judgment. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

       William Hickey III entered a guilty plea to one count of theft in the third

degree, an aggravated misdemeanor, in violation of Iowa Code section 714.2(3)

(2013) (criminalizing “theft of property” not exceeding $500 “by one who has

before been twice convicted of theft”). In July 2015 the court sentenced him to

an indeterminate two-year term of incarceration and ordered him to complete

treatment for substance abuse in prison. Hickey appeals his sentence.

       The presentence investigation (PSI) report showed, after September

2013, Hickey had five convictions for various levels of theft and a September

2013 conviction for possession of a controlled substance. The PSI also showed

the revocation of Hickey’s deferred judgment and probation for the drug offense

and the revocation of his probation for a November 2013 third-degree theft. For

his February 2014 conviction of third-degree theft, the court ordered Hickey to

serve a two-year prison term.          Less than two months after Hickey was

discharged from prison on December 1, 2014, he committed the third-degree

theft at issue here. Thereafter, in March 2015 the State charged Hickey with

fifth-degree theft and possession of drug paraphernalia. The PSI recommended

“Hickey be sentenced to prison. He has proven he is not willing to become a

law-abiding citizen and/or refrain from illegal activity.”

       At the sentencing hearing, the prosecutor argued for incarceration,

contending Hickey had been given “chance after chance after chance and

continues” to commit theft.       Defense counsel requested the court suspend

Hickey’s sentence and order probation with the condition he successfully

complete inpatient treatment for substance abuse. Also at the hearing, Hickey
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admitted he had a serious drug problem and had lied to the PSI reporter about

his use of illegal drugs.       In determining incarceration not probation was

warranted, the court relied on the PSI, Hickey’s dishonesty with the PSI reporter,

his serious drug problem, his propensity for further criminal acts, his “previously

failed probations,” the nature and circumstances of the crime, the number of

thefts he had committed “within the last few years,” and the need to protect the

public from further offenses.

       On appeal, Hickey claims the court abused its discretion in determining

incarceration was warranted and should have suspended his sentence.            We

review Hickey’s challenge to his sentence for an abuse of discretion; any abuse

of discretion necessarily results in legal error. See State v. Valin, 724 N.W.2d

440, 444 (Iowa 2006). “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.” State v. Formaro, 638 N.W.2d 720,

724 (Iowa 2002).

       A sentencing court must examine “all pertinent information” and then

determine an authorized sentence providing the “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. Additionally,

before suspending sentence, the court must consider the defendant’s prior

record of convictions or deferred judgments, employment status, family

circumstances, and any other relevant factors. Formaro, 638 N.W.2d at 725.

       Here, the court imposed a sentence within the statutory limit. Thus, the

sentence is “cloaked with a strong presumption in its favor.” Id. at 724. Our
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review of the record shows the sentence was carefully crafted to ensure Hickey

addressed one of the underlying causes of his criminal acts, his drug abuse,

while at the same time protecting the public from his continued thefts. We do not

find the sentence to be clearly unreasonable or based upon untenable grounds;

rather, the sentence was a sound exercise of the court’s discretion. See id. at

725 (stating a court’s “task on appeal is not to second guess the decision made

by the district court”). Having found no abuse of discretion by the sentencing

court, we affirm.

       AFFIRMED.
