                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-2184
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHAWN KALE NICKERSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, John M.

Wright, Judge.



       A defendant appeals the sentences imposed following his pleas of guilty to

possession of a firearm by a felon and possession of methamphetamine.

SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED

FOR RESENTENCING.



       Ryan J. Mitchell of Orsborn, Milani, Mitchell & Goedken, L.L.P., Ottumwa,

for appellant.

       Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                        2


TABOR, Judge.

      Shawn Nickerson appeals the sentences imposed following his guilty

pleas to possession of a firearm by a felon and possession of methamphetamine.

He contends the district court abused its discretion by failing to give reasons for

rejecting probation or for ordering his prison sentences to run consecutively. We

find the district court provided ample rationale for imposing incarceration, but

because the district court failed to offer any reasons for consecutive sentences,

we vacate that portion of the order and remand for a new sentencing hearing.

      I.     Facts and Prior Proceedings

      On July 22, 2015, the State charged Nickerson with two counts of

possession of a firearm by a felon, a class “D” felony, in violation of Iowa Code

section 724.26(1) (2015), and one count of possession of a controlled substance

(methamphetamine), third offense, a class “D” felony, in violation of section

124.401(5). At a pretrial conference on October 6, the parties reached a plea

agreement. The State agreed to dismiss one of the firearm-possession counts,

and Nickerson agreed to plead guilty to the other firearm-possession count and

an amended count of possession of a controlled substance, second offense, an

aggravated misdemeanor.       The parties acknowledged sentencing would be

“open,” but they agreed the State would recommend concurrent terms of

incarceration and Nickerson would ask for probation at the sentencing hearing.

      At the November 23, 2015 sentencing hearing, the State, consistent with

the plea agreement, asked the court to order incarceration with the two

sentences to run concurrently. Nickerson, through counsel, requested the court

suspend his sentences and order him to be placed at a residential correctional
                                         3


facility as part of his probation. Nickerson also addressed the court personally.

He expressed remorse but also attributed his criminal behavior to his desire to

“help”—Nickerson claimed he had been planning to sell guns and other items to

get money for his family—and to cope with a medical condition as he felt using

methamphetamine helped alleviate his symptoms of multiple sclerosis.

       Following Nickerson’s statement, the district court imposed a period of

incarceration not to exceed five years on the firearm-possession count and a

period of incarceration not to exceed two years on the controlled-substance

count, to be served consecutively. Nickerson appeals his sentences.

       II.    Standard and Scope of Review

       We review a district court’s sentencing decision for an abuse of discretion.

See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). “A district court abuses its

discretion when it exercises its discretion on grounds clearly untenable or to an

extent clearly unreasonable.”     Id.   We consider a district court’s reasoning

“untenable when it is not supported by substantial evidence or when it is based

on an erroneous application of the law.” See id.

       III.   Analysis

       Nickerson argues the district court abused its discretion by sentencing him

to prison without providing any rationale for its choice. The State disagrees,

quoting a lengthy excerpt from the hearing in which the district court explained

the multiple factors behind its sentencing decision.

       At sentencing, “the district court must ‘weigh all pertinent matters in

determining a proper sentence, including the nature of the offense, the attending

circumstances, the defendant’s age, character, and propensities or chances for
                                        4

reform.’” State v. Thacker, 862 N.W.2d 402, 405 (Iowa 2015) (quoting State v.

Johnson, 476 N.W.2d 330, 335 (Iowa 1991)). The court is also required to state

on the record its reasons for selecting the particular sentence. Iowa R. Crim. P.

2.23(3)(d). Both these requirements “ensure[] defendants are well aware of the

consequences of their criminal actions” and “afford[] our appellate courts the

opportunity to review the discretion of the sentencing court.” Hill, 878 N.W.2d at

273 (quoting State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014)).

       The district court satisfied these requirements. While the court did not

provide reasons for imposing incarceration in its written judgment, the court

spoke extensively about its rationale for imposing incarceration at the sentencing

hearing.   See Thompson, 856 N.W.2d at 919 (stating the district court may

satisfy the Iowa Rule of Criminal Procedure 2.23(3)(d) requirement “by orally

stating the reasons on the record or placing the reasons in the written sentencing

order”).

       The district court explained it had considered Nickerson’s age, thirty-two;

the specific facts of the case; and Nickerson’s sizeable criminal record, which

included past convictions for voluntary absence, assault on a peace officer, and

domestic abuse. The court acknowledged the presentence investigation (PSI)

report, which recommended incarceration. The court also weighed the attorneys’

arguments, Nickerson’s statement to the court, and a detailed letter Nickerson

submitted before the sentencing hearing.           Finally, the court recounted

Nickerson’s failure to take advantage of past opportunities to reform his behavior:

       I . . . note in the PSI report that there have been many instances of
       community intervention where . . . instead of putting you in prison
       society has tried to help you, tried to rehabilitate you, within the
                                             5


       community. And that’s what [your attorney] is suggesting that I do,
       is to keep you in the community and let us try some more.
               Obviously, it hasn’t worked, because you have pled guilty to
       having a firearm in your possession as a convicted felon and to
       possessing for a second time a controlled substance. The bottom
       line is you don’t get it.

It is apparent from this recitation that all of these considerations prompted the

court to impose incarceration.         Given the comprehensiveness of the district

court’s explanation, we find no abuse of discretion related to the imposition of

incarceration.

       But the court did not specify the reasons for ordering the sentences to run

consecutively.1    See Hill, 878 N.W.2d at 275 (requiring sentencing courts to

“explicitly state the reasons for imposing a consecutive sentence”). Nickerson

argues, and the State concedes, this omission necessitates a remand to the

district court for resentencing. Because we may not assume the district court’s

rationale for imposing incarceration also applied to its decision to run the

sentences consecutively, we vacate that portion of the sentencing order and

remand to the district court for resentencing. On remand, the district court should

determine     whether Nickerson’s sentences should                run   consecutively or

concurrently and provide reasons for that determination.

       SENTENCES AFFIRMED IN PART, VACATED IN PART, AND

REMANDED FOR RESENTENCING.



1
  The district court entered judgment in this matter on November 23, 2015, before our
supreme court issued its opinion in Hill, which changed the requirements for courts
imposing consecutive terms. 878 N.W.2d at 275. Although the district court acted
without the guidance of Hill, we find the rule of law announced in Hill applies to this case.
See id. (“The rule of law announced in this case . . . shall be applicable to . . . those
cases not finally resolved on direct appeal in which the defendant has raised the issue,
and all future cases.”).
