                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1621
                                  Filed May 17, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RAY ALEXANDER SANGSTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly,

Judge.



      Ray Alexander Sangster appeals his sentence for the charge of leaving

the scene of an accident resulting in death.           AFFIRMED IN PART AND

VACATED IN PART.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
                                              2


MULLINS, Judge.

       Ray Alexander Sangster appeals his sentence for the charge of leaving

the scene of an accident resulting in death, claiming the district court abused its

discretion in imposing sentence. See Iowa Code § 321.261 (2016). “We review

sentencing decisions for abuse of discretion or defect in the sentencing

procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). When, as

here, the sentence given “falls within the statutory parameters, we presume it is

valid and only overturn for an abuse of discretion or reliance on inappropriate

factors.” Id. at 554. “An abuse of discretion will only be found when a court acts

on grounds clearly untenable or to an extent clearly unreasonable.” Id. at 553

(quoting State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006)).                “We give

sentencing decisions by a trial court a strong presumption in their favor.” Id.

       Here, the district court sentenced Sangster to a term of imprisonment for

no more than five years.         In imposing this sentence, the court considered

Sangster’s relatively young age, his lack of criminal history, his lack of

substance-abuse history, and his excellent employment circumstances.                  The

court also considered the nature of the offense, the presentence investigation

report recommending incarceration, the need to protect the community, and the

nature and circumstances of the offense. Before making its decision, the court

heard victim impact statements from the victim’s mother, the victim’s girlfriend

and mother of his children, the victim’s father, and the victim’s sister. The court

also heard the State’s recommendation of incarceration.              The court explicitly

considered       the   options   available:       deferred   judgment,   probation,   and

incarceration.     However, the court concluded, based at least in part on the
                                          3


severity of the offense and the way Sangster handled the incident demonstrating

a lack of responsibility, a five-year sentence of incarceration was warranted to

protect the community and provide Sangster the maximum opportunity for

rehabilitation.   Under these circumstances, we cannot find the district court

abused its discretion in imposing sentence.

       Sangster also appeals the district court’s imposition of a law enforcement

initiative surcharge of $125. See Iowa Code § 911.3. The States concedes

section 911.3 does not apply to violations committed under section 321.261(4).

See id. (applying the surcharge to offenses committed under chapters 124, 155A,

453B, 713, 714, 715A, or 716 and sections 719.7, 719.8, 725.1, 725.2, and

725.3). At sentencing, the district court mistakenly informed Sangster, “You’ll

have to pay a Law Enforcement Initiative fee of $125.” The plea and sentencing

order instructed the clerk of court to assess the surcharge “to each applicable

offense.”    “A rule of nearly universal application is that ‘where there is a

discrepancy between the oral pronouncement of sentence and the written

judgment and commitment, the oral pronouncement of sentence controls.’” State

v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (citation omitted). The State argues

there is no evidence in this record the surcharge was assessed by the clerk of

court, as there is no “applicable offense” to which it should be applied. We find,

however, on the record before us we have a discrepancy between the oral

pronouncement       and   the   written   judgment,   and   the   controlling   oral

pronouncement was an illegal sentence. Therefore, we vacate the portion of the

sentence that imposed the section 911.3 law enforcement initiative surcharge.

       AFFIRMED IN PART AND VACATED IN PART.
