                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1221
                                  Filed April 6, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIS CHRISTOPHER DAVIS JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.



      A defendant appeals the sentence imposed following his plea of guilty to

domestic abuse assault causing injury—second offense. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan N. Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

       Willis Davis Jr. assaulted his live-in girlfriend as she struggled to leave

during an argument in May 2015. A neighbor called the police. When arrested,

Davis told the police he was “just wrestling around” with his girlfriend. The State

originally charged Davis with domestic abuse assault causing injury—third

offense. After plea negotiations, Davis accepted the State’s offer to plead guilty

to the amended charge of domestic abuse assault causing injury—second

offense. In June 2015 the court sentenced Davis to an indeterminate two-year

term of incarceration and ordered him to complete a domestic abuse education

program. Davis appeals his sentence.

       At the sentencing hearing, the prosecutor argued for incarceration,

detailing Davis’s “extensive criminal history.”       The prosecutor also discussed

Davis’s probation history, asserting: “The fact [Davis] is here before the Court

again in a relatively short time after having been convicted of those offenses and

having been placed on probation makes the statement that he has not been

rehabilitated.”   Finally, the prosecutor argued the nature of Davis’s offense

justified incarceration—he “bit the victim on her chest, leaving injury. He also

kicked her in the buttocks as she was attempting to get away from him. The fact

that this is his fifth domestic violence conviction . . . justifies incarceration.”

       Defense counsel admitted Davis had a “considerable” criminal history but

urged the court to sentence him to supervised probation because he had

successfully completed his past probations. Defense counsel also emphasized

Davis’s stable work history and his family obligations, contending those factors

would encourage Davis to complete probation. Davis told the court he was sorry
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for his actions and sought another chance so he could take care of his children.

       In sentencing Davis to prison, the court provided a detailed explanation of

its reasons.   The court first discussed Davis’s age, family obligations, and

employment history:

              The court has before it today a man approximately forty-
       eight years of age. He has pled guilty to a charge of aggravated
       domestic assault. The court is informed that [Davis] has some
       minor children. He has some child-support obligations. He
       indicates that he’s been employed gainfully for significant periods of
       time in the past . . . . [While Davis] indicated he was not employed
       [during his initial appearance,] he does indicate that he has a
       current employment prospect at this time.

       The sentencing court then turned to Davis’s prior record:

               [Davis] does have a significant prior criminal history. This
       conviction for aggravated domestic assault would represent the fifth
       conviction for domestic assault on [his] record. In addition, his
       record also includes other assaults and first-degree robbery,
       possession of a controlled substance, and some other thefts and
       operating while intoxicated offenses.
               The court has received some information, confirmed it
       through review of the criminal history, to the effect that Mr. Davis
       has been placed on probation at least three times in the past. He
       reports that he has not had probation revoked, and the criminal
       history would seem to affirm that.
               The concern that the court has, though, is that despite the
       fact that [Davis] has been successful on probation in the past, that
       form of community supervision has evidently not sufficed to change
       [his] criminal thinking and criminal actions. And in spite of those
       past efforts at rehabilitation, [Davis] continues to commit crimes of a
       violent nature.

       Finally, the court synthesized those circumstances in reaching its

decision to order incarceration:

               And the court, in imposing this sentence, considers all of that
       background information and also considers the facts and
       circumstances surrounding this particular event, and specifically
       considers the harm to [his girlfriend] in this case. And [Davis’s]
       apparent need for rehabilitation and also [the court] has a concern
       for the general protection of the community.
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               . . . [T]he Court determines, . . . given the fact that this is the
       fifth domestic assault conviction on [his] record, that community
       supervision at this point is ineffectual and would not serve any
       useful purpose, and that it is not appropriate in this case.

       Davis raises a single claim on appeal, challenging the court’s written

sentencing order, which stated: “The reasons for this sentence include the

following: [Davis’s] age; prior criminal history; attitude toward rehabilitation; facts

and circumstances of this case; family and employment circumstances; need for

protection of the community and deterrent impact upon Defendant and others

similarly situated.” Davis argues the court’s written order constituted an abuse of

discretion because the court “seemingly used” the factors of “family and

employment circumstances” as a justification for a harsh sentence instead of

recognizing those factors as mitigating against a prison term.                He seeks

resentencing before a different judge.

       We review Davis’s challenge to his sentence for an abuse of discretion;

any abuse of discretion necessarily results in legal error. See State v. Valin, 724

N.W.2d 440, 444 (Iowa 2006). “An abuse of discretion will not be found unless

we are able to discern that the decision was exercised on grounds or for reasons

that were clearly untenable or unreasonable.” State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002).          A sentencing court must examine “all pertinent

information” and then determine an authorized sentence providing the “maximum

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

community from further offenses by the defendant and others.”               Iowa Code

§ 901.5 (2015).     Before suspending sentence, the court must consider the

defendant’s prior record of convictions or deferred judgments, employment
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status, family circumstances, and any other relevant factors.      Formaro, 638

N.W.2d at 725.

      The district court imposed a sentence within the statutory limit. Thus, the

court’s sentence is “cloaked with a strong presumption in its favor.” Id. at 724.

We view the court’s written order as merely setting out the factors the court

considered in reaching its sentence.     No language in the written statement

supports Davis’s claim the court viewed his “family and employment

circumstances” as an aggravating factor.           Instead, the court’s written

pronouncement is consistent with its oral recognition of the same factors and its

assurance at the hearing that “the court, in imposing this sentence, considers all

of that background information.”

       Even if we assume, without deciding, some conflict exists between the

court’s written order and its detailed oral pronouncement of sentence, the court’s

oral pronouncement controls. See State v. Hess, 533 N.W.2d 525, 528 (Iowa

1995) (ruling new sentencing hearing unnecessary; “a proper sentence had been

orally pronounced on the record”). The court clearly stated its rationale at the

hearing and was rightfully concerned Davis had not been rehabilitated by past

probationary stints. The court crafted the sentence to ensure Davis addressed

the underlying causes of his domestic violence, while protecting the public from

his continued criminal activity.   The sentence is not clearly unreasonable or

based upon untenable grounds. See Formaro, 638 N.W.2d at 725 (stating a

court’s “task on appeal is not to second guess the decision made by the district

court”). Finding no abuse of discretion, we affirm the sentence.

      AFFIRMED.
