                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0877
                              Filed March 22, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EARL A. GRIFFIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Henry County, Cynthia H.

Danielson (plea) and John G. Linn (sentencing), Judges.



      The defendant appeals from his sentence for possession with the intent to

deliver (marijuana), as an habitual offender. AFFIRMED.



      William R. Monroe of Law Office of William Monroe, Burlington, for

appellant.

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

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

      Earl Griffin appeals from his sentence for possession with the intent to

deliver (marijuana), as an habitual offender. He maintains the sentencing court

considered crimes to which he did not admit and that were not proved. He asks

that we remand for resentencing. See State v. Sailer, 587 N.W.2d 756, 762

(Iowa 1998). We consider Griffin’s claim for correction of errors at law. See

State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). We will only upset the

sentence on appellate review if “the defendant demonstrates an abuse of trial

court discretion or a defect in the sentencing procedure such as the trial court’s

consideration of impermissible factors.” Id.

      On February 12, 2016, Griffin was charged by trial information with failure

to affix a drug tax stamp (count I) and possession with the intent to deliver

(marijuana) (count II); the State asserted the habitual-offender enhancement

applied to each charge. Shortly thereafter, Griffin entered into a plea deal with

the State whereby he agreed to enter a guilty plea for the charge of possession

with intent to deliver. In return, the State agreed to dismiss count I and agreed

any sentence Griffin received for the charge would run concurrent “to the

sentence that may be reimposed on the Defendant as a result of a parole

violation on previous charge.” The court ordered a presentence investigation

(PSI) report, and sentencing was set for a later date.

      At sentencing, on May 2, 2016, the court asked Griffin and his counsel if

there were any additions or corrections to the PSI report. Griffin responded that

one of his listed children was no longer living and claimed that after being

unsuccessfully discharged from alcohol and drug dependency services—as the
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latest report stated—he had reengaged with services. Griffin did not object to

any other parts of the PSI report, and he did not claim any other statements in

the report were inaccurate.

      The State recommended “confinement,” in accordance with the PSI

report’s recommendation, “based on [Griffin’s] history, the nature of this crime,

and the other reasons as set forth in the PSI.” Griffin asked the court to place

him on supervised probation. The court then stated:

               Mr. Griffin, in making a sentencing decision, the Court
      should do that which would provide the maximum opportunity for
      your rehabilitation and at the same time protect the community from
      further offenses by you and others.
               In making my sentencing decision, I’ve carefully reviewed
      the Presentence Investigation. I’ve taken into consideration the
      comments of the attorneys, your comments, and before coming in
      the courtroom, I reviewed the electronic file to see what all was on
      the docket.
               In connection with making a sentencing decision, it’s my job
      to announce the reasons or the factors I considered in sentencing.
               In this case, only a few factors support probation; a very long
      list of factors support a sentence of confinement.
               ....
               The Court would note that the report from the
      probation/parole office is that the defendant has not done well on
      parole supervision and pretrial release. The Court notes that this
      defendant does not have his high school diploma or a GED. He
      owes a fairly substantial amount of money to the judicial branch,
      and the purpose of considering that element is only that a fine
      wouldn’t deter this defendant; he simply wouldn’t pay it.
               ....
               The Court would note that this defendant has had offered to
      him quite a few community-based corrections programs already.
      This defendant was on parole supervision at the time he committed
      this felony, and this is his third felony, because he’s an habitual
      offender.
               This defendant has a lengthy record of criminal convictions.
      There are traffic convictions, which aren’t a big deal, but, still,
      there’s a number. The defendant was convicted of delivery of
      marijuana in 2007, again in 2008, again in 2010, and then there’s
      the conviction now.
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              Finally, the Court notes that the probation office, who would
      be in charge of supervising and trying to rehabilitate this defendant,
      recommends confinement.
              Mr. Griffin, you seem like an awfully nice guy and you’re
      sincere, but you can’t keep having felony convictions and not
      expect to be punished. Punishment is progressive, which means
      it’s greater every time a person repeats that behavior that got them
      in trouble in the first place, and I get the idea that if you didn’t learn
      your lesson the first, second, or third time, maybe you’ll learn it the
      fourth time. I don’t like sending nice guys to prison, but your record
      is just—it’s so serious that I have to.
              It is the order and judgment of this Court acting pursuant to
      the provisions of Iowa Code Sections 124.401(1)(d), 902.8, and
      902.9 of the [2016] Code of Iowa that the defendant be and he is
      hereby committed to the custody of the Iowa Department of
      Corrections for a term of not to exceed 15 years, and to pay the
      cost of prosecution.

      Griffin maintains the court explicitly relied on statements from Griffin’s

parole officer regarding “other crimes” that Griffin may have committed in

deciding his sentence.    Griffin notes that part of the PSI report contains the

following statements:

             [Griffin’s parole officer] reported the following regarding the
      defendant’s supervision:
             Earl is currently on parole supervision for the following cause
      numbers: FECR006435, FECR006204, & FECR006015 (Henry
      County).
             On 08/26/2015, Mr. Griffin was placed on pretrial supervision
      for cause number FECR007252 (Henry).
             Since being placed on parole supervision, Mr. Griffin has
      continued to use marijuana and has admitted to the use of
      marijuana.
             On 01/09/2014 during a regularly scheduled meeting, the
      defendant stated he was involved in a vehicle accident on
      01/02/2014. The defendant stated he was driving his girlfriend’s
      car and wrecked. He received 2 citations, Driving While Revoked
      and Failure to Maintain Control. Both citations were dismissed in
      Henry County, Iowa.
             On 06/05/2015, Earl was arrested for a number of charges
      that can be found his Parole Violation Review dated 08/27/2015.
      Earl failed to report to his Parole Officer within 24 hours that he had
      contact with law enforcement and was arrested on new charges
      (Earl had contact with law enforcement on 06/05/2015).
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              On 08/25/2015, Mr. Griffin was arrested for Failure to Affix
       Drug Stamp (FECR007252- Count I) and Controlled Substance
       Violation (FECR007252- Count II). Mr. Griffin was transported to
       the Henry County Jail in Mt. Pleasant, Iowa.
              On 09/22/2015, a residence check was completed and a
       smoking device (pipe) was found. The pipe was seized as
       evidence and turned over to the Henry County Sheriff’s Office.
              Mr. Griffin has failed to make monthly payments on both his
       Court Fines and his Supervision Fee payments.
              Mr. Griffin is currently attending Level 1.0 Extended
       Outpatient Treatment at Alcohol Drug Dependency Services in Mt.
       Pleasant, Iowa and is working full-time at Shottenkirk in Mt.
       Pleasant, Iowa.

       First, we note that some of the above statements are purported to be

based on admissions made by Griffin, and when asked if there were any

corrections to the report, Griffin did not challenge the claim that he admitted to

his parole officer he was continuing to use marijuana and was driving his

girlfriend’s car when he was in an accident. The court is allowed to consider

actions the defendant admits doing. See Gonzales, 582 N.W.2d at 517 (“The

defendant's statements to the PSI investigator constitute an admission of his

participation in the delivery offense. . . . The district court did not abuse its

discretion   in   considering that   dismissed   charge   when   sentencing the

defendant.”).

       Additionally, insofar as the statement contains unproven or dismissed

charges, we have no reason to believe the sentencing court relied on them.

Griffin focuses on the court’s statement, “The Court would note that the report

from the probation/parole office is that the defendant has not done well on parole

supervision and pretrial release.”    But one need not rely on the unproven

offenses to reach that conclusion. Another part of the PSI report notes that the

“[d]efendant was on parole at the time this instance offense was committed.”
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Under “sentencing recommendation,” the preparer of the PSI report states, “It

does not appear that past probation, prison, or parole sentences have deterred

Mr. Griffin from engaging in criminal behavior.         Although the Iowa Risk

Assessment-Revised indicates that he presents a low risk to reoffend, a prison

sentence in this cause is justifiable.” Moreover, the court—as well as Griffin’s

parole officer—were aware that Griffin had been unsuccessful during parole, as

the plea agreement between the State and Griffin stated the sentence for the

present case was to run concurrent with his sentence that was being reinstated

due to his violation of his parole and the subsequent revocation.

       The court is charged with imposing the sentence that “will provide

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

protection of the community from further offenses by the defendant.” See Iowa

Code § 901.5. “Some of the factors pertinent to this determination include the

defendant’s character, his propensity to reoffend, and his chances for reform.”

State v. Knight, 701 N.W.2d 83, 86–87 (Iowa 2005). While the court must not

consider unproven offenses, the court should consider whether there is (or is not)

reason to believe the defendant can be rehabilitated and the community

protected if the defendant is given probation. See Iowa Code § 901.5. Here,

Griffin’s lack of success during previous, similar opportunities is an appropriate

factor to consider. See State v. Wilson, No. 10-1324, 2011 WL 2419918, at *2

(Iowa Ct. App. June 15, 2011) (“It was proper for the court to consider whether

the minimal supervision probation offers would provide the maximum opportunity

for the rehabilitation of the defendant, and provide protection for the community

from further offenses.”).
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      Because Griffin has not established the court relied on inappropriate

factors or unproven offenses when sentencing him, we cannot say the district

court erred. We affirm the sentence imposed by the district court.

      AFFIRMED.
