                       IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0653
                                  Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARIAH MAE WOLFE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Mary Jane

Sokolovske, Judge.



       Mariah Wolfe appeals the district court’s revocation of her probation.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.




       Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

         Mariah Wolfe appeals the district court’s revocation of her probation,

claiming the district court abused its discretion. Wolfe also claims the district

court erred in sentencing her to prison despite her mental illness and substantial

compliance with the terms of probation. Finally, Wolfe claims the district court

erred in failing to reduce the civil penalty initially ordered by the amount of her

suspended fine in accordance with Iowa Code section 908.11(5) (2013). We

affirm the district court’s revocation of Wolfe’s probation and subsequent

imposition of a prison sentence. We vacate and remand the civil penalty and fine

portions of her sentence.

I.       Background Facts and Proceedings

         On April 12, 2013, Wolfe was charged with burglary in the third degree

and theft in the second degree. On May 7, pursuant to a plea agreement, Wolfe

pleaded guilty to burglary in the third degree, in violation of Iowa Code sections

713.1 and 713.6A. The district court accepted Wolfe’s guilty plea, granted her

request for a deferred judgment, and placed her on probation for a term of three

years.

         The State filed an application to revoke Wolfe’s probation on January 15,

2015. A hearing was held on April 6 and April 9. Wolfe admitted to various

violations of her probation including, but not limited to, repeated consumption of

controlled substances, failure to comply with the terms of drug court, failure to

maintain employment, failure to follow through with mental health treatment,

driving while suspended, and missing appointments with her probation officer.
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       The district court found Wolfe violated the terms of her probation and

revoked her deferred judgment and probation.          The district court sentenced

Wolfe to an indeterminate term of incarceration not to exceed five years and

imposed a suspended fine of $750.

II.    Standard of Review

       Our review of a sentence imposed in a criminal case is for correction of

errors at law. Iowa R. App. P. 6.907; State v. Formaro, 638 N.W.2d 720, 724

(Iowa 2002). “The decision of the district court to impose a particular sentence

within the statutory limit is cloaked with a strong presumption in its favor, and will

only be overturned for an abuse of discretion or the consideration of

inappropriate matters.” Formaro, 638 N.W.2d at 724. An abuse of discretion will

not be found unless we are able to discern the decision was exercised on

grounds or for reasons that were clearly untenable or unreasonable. State v.

Loyd, 530 N.W.2d 708, 713 (Iowa 1995).

III.   Analysis

       A.     Error Preservation

       The State claims Wolfe has not preserved error on any claim concerning

whether the State proved she violated the terms of her probation and deferred

judgment, nor whether Wolfe’s mental illness negated her culpability for her

subsequent probation violations.

       “If the court’s ruling indicates that the court considered the issue and

necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the

issue has been preserved.” Lamasters v. State, 821 N.W.2d 856, 864 (Iowa

2012) (citation omitted). “The claim or issue raised does not actually need to be
                                          4


used as the basis for the decision to be preserved, but the record must at least

reveal the court was aware of the claim or issue and litigated it.” Id.

       At the probation revocation hearing, after admitting to violating her

probation, Wolfe asked for an alternate sentence in light of her mental health

problems—continuing probation or placement in a treatment facility.        Wolfe’s

mental illness was raised and considered, and as a result, error was preserved.

See State v. Pickett, 671 N.W.2d 866, 869 (Iowa 2003).

       B.     Revocation and Sentence

       Wolfe claims the district court abused its discretion by failing to consider

her mental illness and substantial compliance with her probation when revoking

her probation and imposing a prison sentence.

       At the revocation hearing, Wolfe provided testimony regarding her mental

health and the course of proceedings throughout her probation. The district court

determined all viable alternatives had been exhausted and incarceration was the

most appropriate sentence.

       In addressing probation violations, the sentencing court has four options,

including continuing the probation or revoking “the probation . . . and requir[ing]

the defendant to serve the sentence imposed or any lesser sentence, and, if

imposition of sentence was deferred, . . . impos[ing] any sentence which might

originally have been imposed.” Iowa Code § 908.11(4). The court must examine

“all pertinent information” to determine an appropriate sentence that will provide

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

community. Id. § 901.5; State v. Hopkins, 860 N.W.2d 550, 554 (Iowa 2015).

Considerations may include, but are not limited to, prior convictions, mental
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health, substance abuse history, and the nature of the offense committed. Iowa

Code § 907.5(1)(a)–(g).

      After consideration, we find, as the district court found, Wolfe has

repeatedly violated the terms of her probation and she lacks the will to conform

her behavior to the requirements of probation in the future.      Wolfe’s mental

illness and temporary compliance with the terms of her probation are insufficient

to overcome the harm Wolfe caused, and would continue to cause, to herself and

others. We find no abuse of discretion in the court’s reasoning and affirm the

district court’s revocation of Wolfe’s probation and subsequent prison sentence.

      C.     Civil Penalty

      Wolfe claims, and the State concedes, the district court erred in assessing

a $750 civil penalty without reducing it by the amount of the fine imposed when

judgment was imposed. Wolfe claims, because the district court waived the $750

penalty when it granted her a deferred judgment, the penalty should be reduced

to zero. The State acknowledges the district court imposed an illegal sentence

when it waived the civil penalty upon granting a deferred judgment in 2013.

      Iowa Code section 902.9(e) requires class “D” felons to be “sentenced to a

fine of at least seven hundred fifty dollars but not more than seven thousand five

hundred dollars.” “If the court revokes the probation of a defendant who received

a deferred judgment and imposes a fine, the court shall reduce the amount of the

fine by an amount equal to the amount of the civil penalty previously assessed

against the defendant.” Id. § 908.11(5). Finding no authority allowing the waiver

of this civil penalty, we conclude the district court must determine the amount of
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the civil penalty imposed upon the initial grant of the deferred judgment.1

Following determination of the amount, the district court must reduce the

imposed penalty pursuant to Iowa Code section 908.11(5).

IV.    Conclusion

       We affirm the district court’s revocation of Wolfe’s probation and

imposition of a prison sentence. We vacate the imposition and suspension of the

civil penalty and remand to the district court for a hearing to determine the

amount of the civil penalty. See, e.g., State v. Buchanan, No. 13-1999, 2015 WL

162028, at *3 (Iowa Ct. App. Jan. 24, 2015) (vacating the void portion of a

sentence and remanding for resentencing).

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




1
  See, e.g., State v. Nail, 743 N.W.2d 535, 541–44 (Iowa 2007) (allowing suspension of
civil penalty); State v. Williams, No. 12-2178, 2013 WL 3872931, at *2, (Iowa Ct. App.
July 14, 2013) (declining to find “suspension” of fine was the equivalent to “waiver”);
State v. Blagg, No. 06-0794, 2008 WL 375245, at *2 (Iowa Ct. App. Feb. 13, 2008)
(finding the district court has discretion to suspend a civil penalty).
