                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-2105
                              Filed June 21, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CRAIG LEE MILLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.



      A defendant appeals his conviction for second-degree burglary.

AFFIRMED.




      Emily K. DeRonde of DeRonde Law Firm, P.L.L.C., Johnston, for

appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

      Craig Miller appeals his conviction for second-degree burglary. We find

the district court did not abuse its discretion or consider improper factors in its

sentence. We preserve Miller’s claim of ineffective assistance of counsel for

potential postconviction proceedings. We affirm the district court.

   I. Background Facts and Proceedings

      Miller had been employed at Edgewater, a care center for the elderly, but

lost his job.   On August 28, 2015, Miller burglarized his former employer.

Pursuant to a plea agreement, Miller agreed to plead guilty to one count of

second-degree burglary, in violation of Iowa Code sections 703.1, 703.2, 713.1,

and 713.5 (2015).     In return the State agreed to recommend a suspended

sentence and probation in lieu of prison.         The plea agreement was not

conditioned on the district court’s acceptance.

      Miller claims his trial counsel advised him the court had agreed to be

bound to the sentencing recommendations of the plea agreement. At the plea

hearing it was made apparent the district court was not bound by the sentencing

recommendations in the plea agreement:

             THE COURT: Do you understand, Mr. Miller, that any plea
      agreements or sentencing recommendations made to the Court at
      the time of your sentencing are not binding on the Court and that
      the Court is free to impose any sentence it feels is appropriate at
      the time of sentencing? In other words, while the parties may both
      be recommending probation to the sentencing Judge, the
      sentencing Judge does not have to follow that agreement and could
      impose a prison term if he or she thinks it’s appropriate. Do you
      understand that?
             MR. GRAVES: Did you understand that, sir?
             THE DEFENDANT: Yes, sir.
             THE COURT: So, in other words, there are no guarantees
      as to what your sentence is going to be. Do you understand?
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               THE DEFENDANT: Yes, sir.

      At sentencing, the district court stated:

              Your prior record is not good, six prior felonies.
              Some of those felonies did occur quite some time ago.
      However, in the course of those felonies you violated parole. I
      believe the PSI indicates you violated probation. In addition to this
      crime, you pled guilty to a felony in the summer of 2015. You
      recently pled guilty to another felony in Polk County.
              Employment has been sporadic. Your family circumstances
      do involve six daughters. You have a long history of drug and
      alcohol abuse. You’ve been in multiple treatment programs.
              This crime involved a burglary into a care center for the
      elderly. According to the PSI you are in the moderate to high
      category to recidivate. That means to commit more crimes. You
      are also in the moderate to high category for future victimization.
              The goals of sentencing are to protect the community from
      further offenses by you and to provide you with a sentence that
      would provide you with the maximum opportunity for your
      rehabilitation.
              Now I understand that the author of the presentence
      investigation report is recommending probation. I understand
      you’ve been in the Bridges program, and you are here in front of
      this court telling me that you are sincerely pursuing your recovery,
      and I trust that is correct.
              However, I cannot overlook your past criminal history, your
      recent felony convictions. To suspend this prison sentence would
      minimize your ongoing criminal conduct.
              You’re going to, I hope you pursue recovery from your
      addiction, but you’re going to do it in prison.

Miller was sentenced to a term of incarceration not to exceed ten years. Miller

now appeals.

   II. Standard of Review

      “Generally, a sentence will not be upset on appellate review unless a

defendant can demonstrate an abuse of discretion or a defect in the sentencing

procedure, such as the trial court’s consideration of impermissible factors.” State

v. Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997). “A trial court’s sentencing

decision is cloaked with a strong presumption in its favor, and an abuse of
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discretion will not be found unless a defendant shows such discretion was

exercised on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Id. However, when constitutional claims are raised, our review is

de novo.   State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013).             Claims of

ineffective assistance of counsel are reviewed de novo.        State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006).

   III. Sentencing

      Miller frames his claim as a challenge to a grossly disproportionate

sentence. However, nearly the entire argument is focused on an unstated claim

the district court failed to properly weigh the factors under Iowa Code section

901.5. The State argues Miller “wholly fails to set out the legal framework for a

cruel and unusual punishment argument.” We disagree and so will address both

claims.

   a. Cruel and Unusual

      To determine if a sentence is grossly disproportionate, Iowa courts follow

a three step procedure.

      The first step in this analysis, sometimes referred to as the
      threshold test, requires a reviewing court to determine whether a
      defendant’s sentence leads to an inference of gross
      disproportionality. This preliminary test involves a balancing of the
      gravity of the crime against the severity of the sentence. If, and
      only if, the threshold test is satisfied, a court then proceeds to steps
      two and three of the analysis. These steps require the court to
      engage in an intrajurisdictional analysis comparing the challenged
      sentence to sentences for other crimes within the jurisdiction. Next,
      the court engages in an interjurisdictional analysis, comparing
      sentences in other jurisdictions for the same or similar crimes.

State v. Oliver, 812 N.W.2d 636, 647 (Iowa 2012) (internal citations omitted).
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       However, “it is rare that a sentence will be so grossly disproportionate to

the crime as to satisfy the threshold inquiry and warrant further review.” Id. We

are bound to give “substantial deference to the penalties the legislature has

established for various crimes.”    Id. at 650.   Generally, we find punishments

within the statutorily defined limits are not cruel and unusual punishments. State

v. Kyle, 271 N.W.2d 689, 693 (Iowa 1978). The penalty imposed on Miller is

within the statutorily allowed limits, and we find it is not cruel and unusual.

Therefore, we find Miller has not met the threshold test, and therefore, “no further

analysis is necessary.” Oliver, 812 N.W.2d at 650.

   b. Abuse of Discretion

       Following a guilty plea, the district court has discretion in sentencing. The

district court may order incarceration, a suspended sentence, probation, or other

options. Iowa Code §§ 901.5, 907.3. A sentencing judge is required to examine

all pertinent information, including the presentence investigation report, before

determining the best option for sentencing the defendant.        Id. § 901.5.   The

district court is charged with ordering a sentence that “will provide maximum

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

community from further offences by the defendant and others.” Id.

       Miller had been participating in the Bridges of Iowa, an intensive

substance abuse treatment program, and was reported to be making strong

progress. The presentence report also indicated Miller was employed at the time

of sentencing.    The Dallas County attorney, Miller’s trial counsel, and the

presentence report all recommended probation. Miller claims the district court

disregarded the presentence investigation by not following its recommendation,
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finding Miller’s employment history was sporadic, and giving greater weight to

Miller’s previous felony charges and other convictions.

      During the sentencing hearing, the district court asked clarifying questions

regarding the presentence report, noted prior felony charges and convictions,

and noted violations of parole, a history of substance abuse, the nature of the

offense, and the defendant’s moderate to high likelihood of recidivism.        The

district court then specifically stated the goals of the sentence were the

rehabilitation of the defendant and the protection of the public. When ordering

incarceration, the district court emphasized Miller’s prior criminal history as its

primary consideration.

      We find the district court did not abuse its discretion and considered all

pertinent information.   Allowing discretion in sentencing creates a range of

acceptable choices, “choices upon which individual judges may differ.” State v.

Wright, 340 N.W.2d 590, 593 (Iowa 1983). The district court does not abuse its

discretion unless “such discretion was exercised on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” Cheatheam, 569 N.W.2d

at 821.   The district court’s discretion was based on reasonable conclusions

drawn from the available information. We therefore affirm the district court’s

sentence.

   IV. Ineffective Assistance

      Miller also claims trial counsel was ineffective. He claims trial counsel

advised him, and the Polk County court, the plea agreement had been approved

and accepted by the Dallas County court. This was untrue. Only the Dallas

County attorney had approved and accepted the plea. Additionally, Miller claims
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trial counsel’s failure to advise him of his ability to withdraw his guilty plea and

failure to file a motion in arrest of judgment were both instances of ineffective

assistance as well.

      We find the record before this court is not adequate to resolve these

claims.   Therefore, we affirm Miller’s conviction but preserve all claims of

ineffective assistance of counsel for possible postconviction-relief proceedings.

See State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001) (“Ineffective assistance

of counsel claims presented on direct appeal are typically preserved for

[postconviction-relief] proceedings to allow for a full development of the facts

surrounding the conduct of counsel.”).

      AFFIRMED.
