                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1214
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA STEPHEN BENES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



      Joshua Benes appeals his sentence following his guilty plea to delivery of

methamphetamine as a habitual offender. SENTENCE VACATED IN PART;

REMANDED FOR RESENTENCING.




      Les M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.

       Joshua Benes appeals his sentence following his guilty plea to delivery of

five grams or less of methamphetamine pursuant to a plea agreement. He was

sentenced on July 15, 2016, to a fifteen-year term of incarceration as a habitual

offender, with a five-year minimum before parole eligibility. He also pled guilty to

assault resulting in bodily injury and was sentenced to one year in jail, to run

concurrent to the prison sentence.       These sentences were ordered to run

concurrent to a pending parole violation proceeding. Benes appeals, arguing the

district court abused its discretion by not suspending the sentences and placing

him on probation where he could benefit from treatment and supervision and

erred in failing to consider the provisions of Iowa Code sections 124.413(1) and

(3) and 901.11(1), as amended effective July 1, 2016. 2016 Iowa Acts ch. 1104,

§§ 1, 2, 6.

       “We review sentencing decisions for abuse of discretion or defect in the

sentencing procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).

“An abuse of discretion will only be found when a court acts on grounds clearly

untenable or to an extent clearly unreasonable.” Id. (quoting State v. Leckington,

713 N.W.2d 208, 216 (Iowa 2006)). “We give sentencing decisions by a trial

court a strong presumption in their favor.” Id.

       Given Benes’s lengthy criminal history, multiple failures to respond

favorably to treatment and supervision, including parole supervision at the time

he committed the current offenses, and other record made by the district court at

the time of sentencing, we find no abuse of discretion in the court’s decision to

incarcerate Benes and deny him probation. See Iowa Ct. R. 21.26(a), (d).
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      The State agrees with Benes that the district court erred in failing to

consider the amendments to Iowa Code sections 124.413 and 901.11, which

were effective July 1, 2016. Accordingly, we vacate the sentencing order as to

the mandatory minimum and remand for resentencing.

      SENTENCE VACATED IN PART; REMANDED FOR RESENTENCING.
