                    IN THE COURT OF APPEALS OF IOWA

                                 No. 18-0716
                            Filed February 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRIS SAMART KEOCHAI,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, James C. Ellefson,

Judge.



      A defendant appeals his sentence for lascivious acts with a child.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



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

       Chris Samart Keochai appeals the prison sentence imposed following his

guilty plea to lascivious acts with a child. He contends the sentencing court failed

to exercise its discretion by not considering the options of a deferred judgment or

a deferred sentence. Because Keochai was not eligible for a deferred judgment

and the court was not required to expressly reject a deferred sentence, we affirm.

I.     Facts and Prior Proceedings

       The State charged Keochai with two counts of sexual abuse in the second

degree, a class “B” felony, alleging he repeatedly committed a sex act upon a child

under the age of twelve. Keochai reached a plea bargain with the State. He

agreed to plead guilty to a reduced charge of lascivious acts with a child, a class

“C” felony, in violation of Iowa Code section 709.8(1)(a) (2015), in return for the

State dismissing the second count of the trial information.

       Under the agreement, the State would recommend an indeterminate term

of ten years in prison; a fine of $1000 plus surcharges; payment of court costs,

attorney fees, and victim restitution; a special sentence under Iowa Code section

903B.1; registry as a sex offender pursuant to Iowa Code section 692A.106; a

psychosexual evaluation and successful completion of Iowa Sex Offender

Treatment program; and a no-contact order with the victim and his family. Keochai

was “free to make his own recommendations at the time of sentencing with the

exception of not being able to request a deferred judgment.”

       As a factual basis for the guilty plea, twenty-two-year-old Keochai admitted

“fondling” the penis of his ten-year-old cousin.
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       At the sentencing hearing, the prosecutor recommended Keochai serve a

prison term. Keochai requested a suspended sentence and probation instead of

incarceration. He emphasized his employment, family support, lack of criminal

history, and low risk of reoffending according to a psychosexual assessment.

       The sentencing judge agonized over the decision whether to send Keochai

to prison. The judge told Keochai he had given “a great deal of thought” to the

appropriate sentence and credited defense counsel’s “excellent” argument for

probation, describing the recommendation as “a serious one that weighs heavily

on me.” But the sentencing court identified two facts that most stood out—“the

familial relationship between you and the victim and the age of the victim.” The

court decided Keochai’s abuse of that relationship “call[ed] for incarceration” and

did not call “for suspension of the sentence.”

       At issue on appeal is this passage from the court’s pronouncement:

              I understand that I have discretion to suspend this sentence
       and to take either of the options that [defense counsel] has
       advocated for, either street probation or probation starting out in the
       residential facility, but I do not think that those other options that
       [defense counsel] is advocating for are an adequate response to
       what it is that you’ve been specifically charged with and admitted to
       here. And so, yes, those are options; yes, that’s a good argument.
       In my view, it’s probably the best argument that could be made for
       the situation. It’s an argument that I kind of saw coming and that I
       have given—given a lot of thought to. But it is—but ultimately I think
       incarceration in this instance is required.

Keochai appeals his sentence.

II.    Scope and Standard of Review

       We will not disturb a sentence on appeal unless the defendant shows an

abuse of discretion or a defect in the sentencing procedure. State v. Loyd, 530

N.W.2d 708, 713 (Iowa 1995). Our scope of review for defects in a sentencing
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procedure is for correction of legal error. State v. Thomas, 547 N.W.2d 223, 225

(Iowa 1996). We find an abuse of discretion when the sentencing court “exercises

its discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Id. at 225. The court “must exercise its discretion in determining

what sentence to impose” when the sentence is not mandatory. Id.

       “Failure to exercise that discretion calls for a vacation of the sentence and

a remand for resentencing.” State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). While

a court need not give specific reasons for rejecting a particular sentencing option,

the record must reveal the sentencing court in fact exercised discretion with regard

to the options available. Thomas, 547 N.W.2d at 225. A remand for resentencing

is required where a court fails to exercise discretion because it believes it has no

discretion.   State v. Lee, 561 N.W.2d 353, 354 (Iowa 1997) (citing State v.

Washington, 356 N.W.2d 192, 197 (Iowa 1984)).

III.   Discussion

       Keochai contends he is entitled resentencing because the district court

“viewed its sentencing options as limited to incarceration or suspending the

sentence” when it had the “full panoply” of available sentencing options under Iowa

Code section 907.3. By not considering the full range of possibilities, according to

Keochai, the sentencing court misapplied the law and abused its discretion.

       Iowa Code section 907.3 provides, “[T]he trial court may, upon a plea of

guilty, a verdict of guilty, or a special verdict upon which a judgment of conviction
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may be rendered, exercise any of the options contained in this section,”1 which

include deferring judgment, deferring sentence, or suspending the sentence.2

Keochai concedes the district court considered suspending the sentence but faults

it for not mentioning the possibility of granting either a deferred judgment or

deferred sentence.

       The State responds in two ways. First, the State asserts the district court

did not have discretion to order a deferred judgment or a deferred sentence

because Keochai did not consent to either option. Second, the State contends

Keochai was not eligible for a deferred judgment.




1
   As Keochai notes, the sentencing options in section 907.3 do not apply to forcible
felonies or convictions of persons who are mandatory reporters of child abuse, but neither
situation exists here.
2
  In State v. Thomas, our supreme court explained sentencing courts generally have three
options short of incarceration: defer judgment, defer sentence, or suspend sentence.
        [(1)] When judgment is deferred, the defendant is placed on probation
        without entry of a judgment. [Iowa Code] §§ 907.1(1), 907.3(1). If the
        probation is successfully completed, the defendant is discharged and no
        judgment is entered. Id. § 907.3(1). If probation fails, the judgment is
        entered and the court is permitted to impose any authorized sentence. Id.
        This option allows a defendant to avoid a record of a conviction. [(2)] When
        the sentence is deferred, a defendant is placed on probation at or after
        pronouncement of judgment, but without any sentence imposed. Id. §§
        907.1(2), 907.3(2). The court enters an adjudication of guilt, but the
        sentence is deferred to a later time. Id. § 907.1(2). This delay allows the
        court to consider sentencing in the future after the court has had an
        opportunity to view a defendant’s conduct on probation. The court retains
        the power to impose “any sentence it originally could have imposed.” Id.
        [(3)] Finally, when a sentence is suspended, a defendant is placed on
        probation following the pronouncement of the sentence. Id. §§ 907.1(3),
        907.3(3). The sentence is imposed, but execution of the sentence is
        suspended. Id. § 907.1(3). This option allows a defendant to avoid a
        known sentence of incarceration or other punishment based on successful
        completion of probation.
659 N.W.2d 217, 221 (Iowa 2003); see also Iowa Code § 907.1(2) (“‘Deferred sentence’
means a sentencing option whereby the court enters an adjudication of guilt but does not
impose a sentence. The court retains the power to sentence the defendant to any
sentence it originally could have imposed subject to the defendant’s compliance with
conditions set by the court as a requirement of the deferred sentence.”).
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       We agree Keochai did not qualify for a deferred judgment.3 A court may not

defer judgment when “[t]he offense is a violation of section 709.8 and the child is

twelve years of age or under.”        Iowa Code § 907.3(1)(a)(14).        Keochai was

convicted of violating section 709.8, and his victim was a ten-year-old child. The

plea agreement also prohibited Keochai from requesting a deferred judgment—

perhaps in recognition of the section 907.3(1)(a)(14) restriction. Accordingly, the

district court did not have discretion to defer judgment.

       But the court did have discretion to defer sentence. We are not convinced

by the State’s argument that a deferred sentence was unavailable because

Keochai did not request that option. True, section 907.3(2)(a) allows for a deferred

sentence “with the consent of the defendant.” Yet Keochai’s failure to request a

deferred sentence does not preclude his giving consent if the option were offered

by the district court. See State v. Newell, No. 14-1186, 2015 WL 4468856, at *2

(Iowa Ct. App. July 22, 2015) (“[I]t is, in theory, possible for a sentencing court to

offer . . . [a] deferred sentence, receive consent from the defendant, and then order

the sentence without the defendant having first requested the sentence

specifically.”).

       So the remaining question is—did the district court overlook its authority to

grant a deferred sentence? Keochai isolates this statement by the district court: “I

understand that I have discretion to suspend this sentence and to take either of

the options that [defense counsel] advocated for, either street probation or starting

out in the residential facility . . . .” Keochai asserts by laying out those options, the


3
  Keochai concedes in his reply brief he “may not have been eligible” for a deferred
judgment.
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court mistakenly excluded the possibility of deferring sentence. See id. (remanding

for resentencing when district court stated: “The Court doesn’t have a lot of

sentencing options here. They are prison or probation.”).

       We disagree with Keochai’s interpretation. The district court discussed the

sentencing options it believed worthy of consideration but did not portray any

misperception that those were the only options statutorily available. See State v.

Beek, No. 16-1837, 2017 WL 6033732, at *3 (Iowa Ct. App. Dec. 6, 2017) (finding

no abuse of discretion where district court mentioned only incarceration versus a

suspended sentence). The district court weighed the need to incarcerate Keochai

against the efficacy of probation, which would be inherent in both a suspended

sentence and a deferred sentence. Although the court explicitly mentioned only

the option of suspending sentencing not deferred sentencing, it thoroughly

explained why probation was not an adequate response to the broken familial trust

between the Keochai and the ten-year-old victim. The court did not have to explain

why it rejected each less restrictive sentencing option. See Thomas, 547 N.W.2d

at 225. Therefore, we find no failure to exercise discretion and affirm the judgment

and sentence.

       AFFIRMED.
