                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0150
                            Filed November 12, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NIGEL WAYNE GRAVES,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Jasper County, Steven J.

Holwerda, District Associate Judge.



      A defendant appeals the prison sentence imposed following his guilty plea

to forgery. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Sheryl A.

Soich, Assistant Attorneys General, for appellee.



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

      Nigel Graves appeals the indeterminate five-year prison term imposed

following his guilty plea to forgery.   He claims the district court should have

suspended his sentence and placed him on probation to obtain mental health

services. Because we find the court did not abuse its discretion in sentencing

Graves to incarceration, we affirm.

      The forgery charge resulted from Graves’s attempt to cash a $400 check

that belonged to another person, without permission, at Bank Iowa in Newton on

September 9, 2014. The State filed a trial information on September 24, 2014,

alleging Graves violated Iowa Code section 715A.2(1), .2(1)(c), and .2(2)(a)

(2013).   Graves entered a guilty plea on November 5, 2014, admitting he

endorsed the forged check. The State informed the court at the plea hearing that

it would make a sentencing recommendation consistent with the presentence

investigation (PSI) report, if one was ordered. The court ordered a PSI and

directed Graves to cooperate with the preparer.

      The PSI report detailed Graves’s long history of both serious mental

illness and criminality. The report noted Graves had been sentenced to prison

three times—with his last release in September 2011. The report also noted

Graves had “previously been granted probation on four occasions and has been

unsuccessful in every attempt.” The report recommended incarceration. More

specifically, the report urged “the defendant be placed into the custody of the

Director of the Iowa Department of Corrections [DOC] in the facility best suited

for offenders with severe mental health issues.”
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       At the sentencing hearing on January 14, 2015, the State pointed to

Graves’s “quite lengthy criminal history” and asked the district court to follow the

PSI report’s sentencing recommendation of incarceration.

       On the defense side, counsel agreed his client, who was thirty-four years

old, was “a familiar person to the court.” Counsel asserted Graves’s mental

health problems were “typically the generators that bring him before the court.”

Counsel highlighted the passage in the PSI asking for the DOC to place Graves

in the best facility for an offender needing mental health treatment but expressed

doubt about the availability of such programming. Counsel relayed his client’s

wish to be placed in a mental health institute but acknowledged the court did not

have the “power to direct somebody to a specific mental health institute.”

Counsel continued: “There is a need for mental health services among all the

members of the prison population, and Mr. Graves is a good example of that.”

Counsel told the court there was “a certain logic to just placing him on probation

with those kind of services, because it would be cheaper for society.” Then

Graves personally addressed the court, saying he believed a mental health

institute would benefit him more than prison.

       The court imposed a sentence of incarceration not to exceed five years,

explaining its decision as follows:

       The Court is certainly aware of—of the statistics of the number of
       people that are in prison that allegedly have mental health issues,
       as well as the fact that for people with mental health issues, there
       may be a more effective treatment someplace else. The purpose of
       prison is more for punishment and hopefully rehabilitation for the
       criminal act of it rather than for the rehabilitation on the mental
       health side of it, and that’s certainly unfortunate for someone who
       shows both mental health issues as well as criminal behavior. But
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      as [defense counsel] said, this Court at this time doesn’t have the
      authority to just place you at a mental health institute.

      The court addressed the downside to leaving the burden of obtaining

mental health treatment on Graves’s shoulders:

      The unfortunate thing, Mr. Graves, is that when you are not
      incarcerated, the responsibility for seeking mental health
      counseling or following through with mental health counseling falls
      on you. And when you’re out, if you can’t take the steps to address
      that, then it’s a little difficult for the Court to fashion a punishment
      that may benefit you now, but you only want it now when you’re
      facing the prospect of prison.

      The court then focused on Graves’s history of failed probation:

      Given the fact that, at least according to the Presentence
      Investigation Report, you’ve been on probation four times and been
      successful—unsuccessful four times, the Court does not believe
      that probation is appropriate at this time either. The Court is
      certainly hopeful that you’ll get at least sufficient mental health
      services while you’re in prison, and if you’re either released on
      parole or discharged, that once you’re out, you’ll be able to find the
      services that will assist you with your mental health needs.

      Graves now appeals, challenging only the sentence imposed.

      We review sentencing decisions for an abuse of discretion.            State v.

Knight, 701 N.W.2d 83, 85–86 (Iowa 2005). An appellate court will find such

abuse only when the sentencing court exercises its discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable. State v. Thomas,

547 N.W.2d 223, 225 (Iowa 1996).

      Graves argues the court abused its discretion by not granting probation.

Graves contends the court should have suspended his sentence on the condition

he “seek and obtain” voluntary or involuntary hospitalization for persons with

mental illness under Iowa Code sections 229.2 or 229.6.            Graves cites no
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authority for a sentencing court to order civil commitment as a condition of

granting probation. See generally State v. Valin, 724 N.W.2d 440, 446 (Iowa

2006) (“A condition is reasonable when it relates to the defendant’s

circumstances in a reasonable manner.”).

       We find no abuse of discretion in the district court’s process of determining

the appropriate sentence to address Graves’s rehabilitation, as well as the

protection of the community. See Iowa Code § 901.5; see also State v. Formaro,

638 N.W.2d 720, 724-25 (Iowa 2002). A sentencing court must weigh the nature

of the offense and attending circumstances, the defendant’s age, character and

propensity and chances of reform. Formaro, 638 N.W.2d at 725. And before

suspending sentence, the court must consider the defendant’s prior record of

convictions, employment status, family circumstances, and any other relevant

factors from Iowa Code section 907.5. Id.

       The district court acknowledged Graves’s significant mental health issues.

But the court also considered his long criminal history, stretching back decades.

The court took special note of Graves’s previous unsuccessful probationary

sentences. The court was “hopeful” that Graves could obtain “sufficient mental

health services” while in prison. It was not an abuse of discretion for the court to

place greater weight on Graves’s poor chance of reform while on probation. See

State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983) (holding “right of an individual

judge to balance the relevant factors in determining an appropriate sentence

inheres in the discretionary standard”).

       AFFIRMED.
