                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2060
                            Filed December 10, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRELL LYNN PACK,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Lee (South) County, Michael J.

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



      Darrell Pack appeals the sentence imposed by the district court.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Michael Short, County Attorney, and Bruce C. McDonald, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Vogel and Bower, JJ.
                                           2



BOWER, J.

       Darrell Pack appeals the sentence imposed by the district court after his

guilty plea to two counts of lascivious acts with a child, in violation of Iowa Code

section 709.8(3) (2011). We affirm on appeal by memorandum opinion pursuant

to Iowa Court Rule 21.26(1)(a).

       From 2012 through 2013 Pack sexually abused four children. Pack was

charged with two counts of sexual abuse in the second degree, two counts of

lascivious acts with a child, one count of indecent exposure, and two counts of

lascivious conduct with a minor. Pursuant to a plea agreement, Pack pled guilty

to two counts of lascivious acts with a child and the other charges were

dismissed.   Pack, in appealing the district court’s sentence, claims the court

relied on an impermissible sentence factor as a reason to deny ordering a less

severe punishment.

       At sentencing Pack, the district court stated:

               Mr. Pack, 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 considered the comments of the
       attorneys, your comments; and I’ve reviewed the court file. In this
       case there are a few factors which would justify mitigation.
               There are a great many factors, however, which justify
       confinement.     Those factors which the Court would take into
       consideration in mitigation are as follows: The defendant does have a
       source of income, receiving $904 per month disability. He has his
       GED, apparently has a residence at which he can live, and he has
       several family member ties to Keokuk. Finally, he has no criminal
       record. Those factors which would justify confinement are as follows:
       The defendant is not a youthful offender, he’s 56 years old. The
       purpose in taking age into consideration is that sometimes when a
       young person commits a nonviolent crime, the Court recognizes this is
       an act of impulse and will give him a second chance. First of all, this is
                                          3



       the kind of crime that is not one that is forgiven if committed based on
       impulse; and, secondly, it’s the type of crime that a person thinks
       about and must act responsibly and simply must not commit.
                The Court would note that the nature and circumstances of
       these crimes are particularly serious. These crimes involved child
       victims. The Court would note that although the defendant has several
       family members in Keokuk, he really doesn’t have many family ties
       here, but his family ties are to another state.
                This defendant previously had a significant substance abuse
       problem prior to 2005. Apparently, from that time to now, he no longer
       does have that problem. This defendant has a history of emotional
       problems. The Court would note, also, the difficulties as pointed out in
       the assessment performed by the Department of Correctional Services
       . . . the defendant scored in the medium risk range on the scale with
       regard to child molestation, he scored on the antisocial scale in the
       problem range, and he scored in the severe range on the sexual
       adjustment distress impulsiveness and alcohol and drug component of
       the test. The report also indicates that even though this defendant
       expresses remorse, and one must question whether that remorse is
       more of fear as to what he has looking to the forward, the report
       indicates he’s not been accountable for the crime. He minimizes the
       crime, he tends to blame the children, and that simply will not do. In
       balancing these factors and taking into consideration the
       recommendation by the County Attorney and the Probation Office, the
       Court concludes confinement is the appropriate outcome and the
       Court will order confinement and these sentences shall run
       consecutive, not concurrent.

       Pack claims the court impermissibly considered his state of origin as a

sentencing factor. The above colloquy shows the court considered many factors

including the fact Pack has “family ties [in] another state.” At no point did the court

mention Pack’s state of origin. Iowa code section 907.5(1)(d) lists “the defendant’s

family circumstances” as a consideration for the court in making a probation or

incarceration decision.    Iowa Code § 907.5(1)(d) (2011).         A district court’s

sentencing decision to impose a sentence within the statutory limits is cloaked

with a strong presumption in its favor and will only be overturned for an abuse of

discretion or defect in the sentencing procedure, such as considering

impermissible factors. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
                                        4



      The court did not rely on Pack’s state of origin as a consideration in

denying his request for a less severe punishment. Therefore, we find the court

did not abuse its discretion and affirm Pack’s sentence.

      AFFIRMED.
