                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0450
                               Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WARREN WILLIAM LOVELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Joel W.

Barrows, Judge.



      A defendant, who pleaded guilty to two counts of incest, challenges the

reasons given for his consecutive sentences. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.



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

       For the third time, Warren Lovell challenges the consecutive sentences

imposed following his guilty pleas to two counts of incest.            In two previous

appeals,   Lovell   successfully   argued     the   district   court   considered   an

impermissible factor when choosing his sentence.               In this appeal, Lovell

contends the district court erred on the opposite side, failing to demonstrate it

considered the minimum essential factors.

       Because the district court expressed, albeit succinctly, its reasons for

imposing consecutive terms, we affirm Lovell’s sentence.

       The district court is required to “state on the record its reason for selecting

the particular sentence.” Iowa R. Crim. P. 2.23(3)(d). We review the record to

assess whether the district court abused its discretion in failing to provide its

rationale for the sentence imposed. See State v. Oliver, 588 N.W.2d 412, 414

(Iowa 1998). We will only find an abuse of discretion when a court acts on

grounds clearly untenable or to an extent clearly unreasonable. Id.

       On December 3, 2012, Lovell appeared in the district court and pleaded

guilty to two counts of incest, class “D” felonies, in violation of Iowa Code section

726.2 (2011). He admitted twice having oral sex with a relative. When Lovell

was sentenced in January 2013, the district court impermissibly considered an

unproven factor, prompting the State to concede in the first appeal that

resentencing was required. When Lovell was resentenced in November 2013,

the district court again mentioned the unproven information.            The court also

expressed concern Lovell was not taking responsibility for his crimes and instead

was blaming the child. Our supreme court vacated the sentence and remanded
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for resentencing before a different judge. State v. Lovell, 857 N.W.2d 241, 243

(Iowa 2014) (explaining “although the district court attempted to disclaim the

reference to the impermissible sentencing factor, ‘we cannot speculate about the

weight the sentencing court gave to these unknown circumstances. Since we

cannot evaluate their influence, we must strike down the sentence’” (citation

omitted)).

       On March 6, 2015, Lovell again appeared for sentencing. The district

court assured the parties that it reviewed the presentence investigation (PSI)

report, but noted “for the record” it would not consider any criminal history that

did not result in a conviction.    The State again asked the court to impose

consecutive prison sentences for the two counts. Defense counsel asked the

court to follow the PSI recommendation, “which calls for probation and possibly a

Residential Correctional Facility.” Counsel noted his client was seventy years

old, had no other criminal history, and admitted guilt. Lovell opted not to exercise

his right of allocution, and the victim was not present to speak at sentencing,

though she had done so at the previous hearings.

       The district court imposed indeterminate five-year prison terms on each

count, ordering Lovell to serve them consecutively.        The court stated: “The

reasons for the sentences are your age, the nature of the offenses, protection of

the community, the fact that these were separate incidents.” The court further

stated “the overall sentencing plan here warrants consecutive sentences.”

       On appeal, Lovell argues the district court’s “boilerplate language is

insufficient” to allow review of its exercise of discretion.       In legal usage,

“boilerplate” means “ready-made or all-purpose language that will fit in a variety
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of documents.” Bryan A. Garner, Garner’s Dictionary of Legal Usage 115 (3d ed.

2011).1   Our supreme court has “rejected a boilerplate-language approach that

does not show why a particular sentence was imposed in a particular case.”

State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015).           But the Thacker court

opined “terse reasoning can be adequate” if “the statement in the context of the

record demonstrates what motivated the district court to enter a particular

sentence.” Id.

       In seeking to uphold the sentence, the State argues the district court’s list

of reasons “viewed within the context of the entire sentencing proceeding,

provide an explanation which is sufficient for the court’s discretionary decision to

be reviewed.” The State contends the court properly considered that Lovell was

nearly seventy years of age at the time of the offenses—a mature adult with “a

fully developed understanding of right and wrong, such that there is no excuse

for his behavior.”   The State also argues the court’s motivation for imposing

consecutive prison terms rather than probation can be detected from its

references to the nature of the offenses, their commission on entirely separate

occasions, and the need to protect the community. On the need to protect the

community from Lovell, the State points to the defendant’s version of events in

the PSI where he fails to accept full responsibility for the offenses, stating the

child “came on to me but I let her” and he was also a victim of the events.

       This case illustrates the tightrope walk that must be performed by a

sentencing judge. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.


1
  The term originated from “the newspaper business, in which it originally referred to
syndicated material in mat or plate form.” Garner’s Dictionary of Legal Usage at 115.
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1994) (recognizing “sentencing process can be especially demanding and

requires trial judges to detail, usually extemporaneously, the specific reasons for

imposing the sentence”). Say too much and be perceived to have considered

impermissible factors; say too little and risk not providing adequate reasons for

the chosen sentence. Clearly, the court performing Lovell’s re-resentencing tried

to avoid the pitfall of considering improper information.

       The question here is whether the somewhat succinct and generic nature

of the court’s statement of reasons “handicaps our review of the sentencing

discretion.” See State v. Carberry, 501 N.W.2d 473, 478 (Iowa 1993) (upholding

sentences despite “extremely terse” statement by the court because it was

“reasonably clear from what was said that the judge imposed consecutive

sentences based on his perception of the aggregate culpability of two separate

and distinct heinous offenses”). We conclude the court’s statement of reasons,

viewed in context, provides a sufficient basis for us to evaluate its motivation for

ordering consecutive sentences. See State v. Johnson, 445 N.W.2d 337, 343

(Iowa 1989). As in Johnson, the sentencing court announced its review of the

PSI and cited several pertinent factors that accounted for the decision to boxcar

the prison terms.    We find no abuse of discretion in the sentencing court’s

compliance with rule 2.23(3)(d).

       AFFIRMED.
