                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0425
                           Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES DAVID DOLAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



      A domestic-abuse defendant challenges his 180-day jail sentence.

AFFIRMED.



      Dennis D. Jasper, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

       James Dolan appeals his jail sentence for domestic-abuse assault while

displaying a dangerous weapon. The district court imposed a one-year term,

suspending all but 180 days. Dolan asserts the court relied on improper factors

and abused its discretion in deciding on the sentence.           Because the record

contradicts Dolan’s assertions, we affirm his sentence.

       I.     Facts and Prior Proceedings

       Dolan’s former girlfriend summarized the facts of the assault in her victim

impact statement:

              I thought the night of March 5th, 2016, would be a night to
       hang out with . . . friends. James turned this evening into a
       nightmare that I can never forget. The threat he made against my
       life was traumatic. I had never felt so unsafe. I was driving and
       had seen James’[s] car parked on the side of the road. I noticed he
       had pulled up behind me and blocked me in the driveway, so there
       was no way I could back out. I was trapped. He quickly got out of
       his car, and in my rearview mirror I noticed his daughter . . . was in
       the back seat. He forcefully opened my car door, and he was
       holding a knife. He said to me, “This is how easy it is for me to find
       you and hurt you.”

       The State charged Dolan with domestic-abuse assault with a dangerous

weapon, in violation of Iowa Code section 708.2A(2)(c) (2016).                He was

convicted of that aggravated misdemeanor following a bench trial.

       The presentence investigation (PSI) report recommended probation.1 The

defense endorsed that recommendation at the sentencing hearing. The State

suggested Dolan serve 240 days in jail with all but thirty days suspended.


1
  The PSI also discussed Dolan’s “problematic” history of alcohol consumption, including
two convictions for operating while intoxicated and a 2014 conviction for public
intoxication. The report noted a need for Dolan to undergo a substance-abuse
evaluation and follow through with any recommended treatment.
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          In discussing the sentence with Dolan, the district court listed “several

troubling things” about the case, namely, Dolan’s criminal record, his use of a

knife during the assault, the purposeful nature of his contact with the victim, 2 his

decision to commit the assault while his seven-year-old daughter waited in his

car, and his efforts “to get two of the State’s witnesses to not come in and testify.”

          The district court rejected the sentencing options urged by the PSI

investigator and the prosecutor:

                 With all due respect to the State’s recommendation, that’s
          not a sufficient penalty in this case given the factors that I’ve recited
          here. I’ve taken a look at your [PSI], I’ve reviewed what’s available
          to me in terms of community resources in an attempt to determine
          what the appropriate rehabilitative plan for you would be. I also
          have to keep in mind that the public needs to be protected.

Considering those goals, the district court decided the jail-based treatment

program would be the preferable placement for Dolan. The court ordered Dolan

to serve a one-year jail term with all but 180 days suspended. Dolan challenges

only his sentence on appeal.

          II.    Scope and Standard of Review

          We review sentencing decisions for legal error.            See Iowa R. App. P.

6.907. We will not vacate Dolan’s sentence unless he is able to demonstrate an

abuse of the district court’s discretion or a defect in the sentencing procedure,

such as the consideration of impermissible factors. See State v. Lovell, 857

N.W.2d 241, 242–43 (Iowa 2014).               The district court abuses its sentencing


2
    The court stated:
         [I]t’s not like you just ran into [the victim] on the street somewhere, but it
         appears you laid in wait for her, and you kind of blocked her car in or at
         least pull in behind her, kind of trapped her in the driveway, and then
         approached the vehicle with a weapon drawn and make a threat.
                                        4

discretion when it rests its decision on clearly untenable grounds. State v. Hill,

878 N.W.2d 269, 272 (Iowa 2016). Grounds are “untenable” when not supported

by substantial evidence or when based on an erroneous application of the law.

Id.

      III.   Analysis of Sentencing Claims

      Dolan alleges that when imposing the 180-day jail sentence, the district

court “incorrectly considered” several factors, including: (1) the presence of

Dolan’s daughter at the crime scene; (2) the fact Dolan “laid in wait” for the

assault victim; (3) his use of a knife, when displaying a dangerous weapon was

an element of the offense; (4) “unsubstantiated statements” that Dolan tried to

stop two witnesses from testifying; (5) assault and alcohol-related offenses Dolan

committed ten or more years ago; and (6) the availability of substance-abuse and

batterers-education programs in jail.

      None of these considerations was impermissible. See State v. Formaro,

638 N.W.2d 720, 725 (Iowa 2002) (“We will not draw an inference of improper

sentencing considerations which are not apparent from the record.”). The district

court is allowed—in fact, is expected—to consider the attending circumstances of

a crime when imposing a sentence. See State v. Cupples, 152 N.W.2d 277, 280

(Iowa 1967). Dolan’s willingness to expose his young daughter to the planned,

armed assault on his former girlfriend and his later efforts to discourage

witnesses from coming forward, were facts supported by the record and fair

concerns when deciding the appropriate punishment. Here, the district court

weighed all of the pertinent sentencing factors, including Dolan’s prior

convictions, his family circumstances, his substance-abuse history, and the
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treatment options available in the community and the correctional system, as well

as the nature of the offense committed. See Iowa Code § 907.5(1).

       Dolan also contends the district court abused its discretion in not adopting

the PSI report’s recommendation for probation. But a PSI recommendation is not

binding on the sentencing court. See State v. Grgurich, 253 N.W.2d 605, 606

(Iowa 1977). The district court offered a tenable justification for the length of the

jail term, emphasizing public safety along with Dolan’s need for classes on

substance abuse and domestic violence. See Iowa Code § 901.5 (stating an

appropriate 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”). The record reveals a proper exercise of sentencing

discretion.

       AFFIRMED.
