                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0053
                             Filed December 9, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

QUENTIN MOHAMMED PENDLETON,
     Defendant-Appellant.
________________________________________________________________

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

Ellefson, Judge.



      Quentin Pendleton appeals the sentence imposed following his conviction

for willful injury causing bodily injury. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Tyler J. Buller,

Assistant Attorneys General, for appellee.



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

       Quentin Pendleton appeals the sentence imposed following his conviction

for willful injury causing bodily injury, in violation of Iowa Code section 708.4(1)

(2013). He claims the district court considered an improper factor at sentencing

and abused its discretion in imposing a prison sentence. Because the sentence

was not unreasonable or based on untenable grounds, we affirm.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       In June 2014, Pendleton punched his fiancée, Sharon, in the face “several

times” before throwing her into a porch railing and striking her in the face “several

more times.” Pendleton then threw Sharon on the ground and punched her in

the face until she lost consciousness. During the melee, Pendleton fractured

Sharon’s jaw multiple times, causing pain and “significant facial deformity.” Oral

surgery was required to insert a plate to stabilize Sharon’s jaw. Pendleton, who

appeared to be intoxicated immediately following the incident, reported to the

responding law enforcement officers that he and Sharon had been “just

wrestling” and he did not know how she got hurt.

       The State charged Pendleton with domestic abuse assault causing bodily

injury and willful injury causing serious injury. After reaching a plea agreement,

the charge of domestic abuse assault causing bodily injury was dismissed and

Pendleton entered an Alford plea1 to the lesser-included offense of willful injury

causing bodily injury.



1
 An Alford plea allows a defendant to consent to the imposition of a sentence without
admitting participation in the acts constituting the crime. North Carolina v. Alford, 400
U.S. 25, 37 (1970).
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       In sentencing Pendleton, the court noted his age at the time of offense

and his lack of a violent criminal history. The court then stated:

               On the other side of the ledger are the facts that [the
       prosecutor] has identified. In the course of the Alford plea, we
       used, I think, considerable care in establishing that the factual basis
       that I had was based on what the minutes said, and Mr. Pendleton
       today still takes issue in some unspecified way with those minutes,
       but nevertheless those are the factual bases. Those are the facts
       of the crime.
               The Court also has before it the fact that the defendant has
       been on probation on one other occasion and that probation was
       not successful. It was revoked. There is also the . . . consideration
       that an Alford plea—and I remember the specifics of the plea in this
       case really allowed the defendant to never come to grips with what
       it is that he was accused of and what it is that he had done
       according to the . . . factual basis in this case and so it seems to
       me—then you throw in the presentence investigation and the
       presentence investigator’s recommendation of a suspended
       sentence and probation, and it seems to me that there is
       considerable justification for the Court to go either way in this case.

After considering “the facts of the crime itself and the need for deterrence both to

this defendant individually and also of others in the community,” as well as taking

into account “both the rehabilitation of the defendant and the protection of the

community,” the court determined it was proper to impose a term of no more than

five years in prison and require Pendleton to serve that term.

       On appeal, Pendleton alleges the court considered an improper factor in

sentencing him. Specifically, he argues the court impermissibly relied on the fact

he entered an Alford plea, which he claims the court interpreted as a lack of

remorse.

II.    SENTENCING.

       We review sentences that fall within the statutory limits for an abuse of

discretion. State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015). Our task is not to
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second guess the sentencing court but to determine whether its decision was

unreasonable or based on untenable grounds.        Id. at 553.   In making this

determination, we consider the societal goals of sentencing, which focus on

rehabilitation of the offender and protection of the community. Id. at 552. We

weigh a number of factors, “‘including the nature of the offense, the attending

circumstances, the age, character and propensity of the offender, and the

chances of reform.’” Id. at 552-53 (quoting State v. Formaro, 638 N.W.2d 720,

724 (Iowa 2002)).      However, if the court relies on an improper factor in

sentencing a defendant, even if it was a secondary consideration, an abuse of

discretion has occurred. State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014).

       A sentencing court may consider a defendant’s lack of remorse in

choosing a sentence that will provide for the defendant’s rehabilitation and

protect the public from further offenses by the defendant. State v. Knight, 701

N.W.2d 83, 89 (Iowa 2005). This is true “even when the defendant professes his

innocence by entry of an Alford plea” because “the defendant entering an Alford

plea amidst claims of innocence is no different than a defendant found guilty

amidst claims of innocence.      The defendant’s lack of remorse is a pertinent

sentencing factor in both situations.” Id.

       Pendleton argues this is not a case where the court considered the

defendant’s demonstrated lack of remorse in spite of his Alford plea. Rather, he

claims the court relied on his Alford plea as an indication he failed to accept

responsibility for the crime, which he argues is an improper consideration.
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Pendleton further argues he demonstrated both remorse and acceptance of

responsibility during the allocution phase of sentencing.

       Whether the court may find a defendant fails to accept responsibility or

lacks remorse based on the defendant’s entry of an Alford plea has not been

explicitly addressed in Iowa.2          However, our supreme court has outlined

generally what the sentencing court is and is not permitted to consider in

determining if a defendant accepts responsibility or demonstrates remorse.

Unequivocally, a defendant’s decision to plead not guilty and stand trial may not

be considered by the sentencing court. Id. at 87. A defendant’s lack of remorse

or failure to accept responsibility may be found “based on facts other than the

defendant’s failure to plead guilty.”        Id. (emphasis added).         In making that



2
  The entry of an Alford plea “is, as a general proposition, inconsistent with the
acceptance of responsibility.” United States v. Gordon, 979 F. Supp. 337, 342 (E.D. Pa.
1997); see also State v. Meynardie, 616 S.E.2d 21, 26 (N.C. Ct. App. 2005)
(“Defendant’s Alford plea indicates a reluctance to take full responsibility for his criminal
conduct.”). For this reason, a number of courts have held a defendant’s decision to
enter an Alford plea is a relevant and appropriate consideration when determining a
defendant’s sentence. Gordon, 979 F. Supp. at 342; see also United States v. Morris,
139 F.3d 582, 584 (8th Cir. 1998) (rejecting a claim that consideration of an Alford plea
violates a defendant’s Fifth Amendment rights); United States v. Harlan, 35 F.3d 176,
181 (5th Cir. 1994) (“We hold that a district court may consider whether a defendant has
entered an Alford plea as a relevant factor when deciding whether to afford a defendant
a reduction in offense level for acceptance of responsibility.”); United States v.
Rodriguez, 905 F.2d 372, 374 (11th Cir. 1990) (“If an unqualified guilty plea can serve as
evidence of a defendant’s acceptance of responsibility, . . . then logically the
qualifications a defendant states in his guilty plea may be evidence that he has not fully
recognized and accepted personal responsibility for the crime.”); State v. Baker, 290
P.3d 1284, 1289 (Idaho Ct. App. 2012) (“Where a district court accepts an Alford plea, it
may nonetheless assess the defendant’s potential for rehabilitation when sentencing by
considering that the defendant entered an Alford plea and did not admit guilt or fully
accept responsibility for the crime.”); Meynardie, 616 S.E.2d at 26 (noting that
“defendant’s Alford plea merits against finding that defendant accepted responsibility for
his conduct”); cf. United States v. Boyle, 10 F.3d 485, 490 (7th Cir. 1993) (affirming the
district court’s refusal to reduce defendant’s offense level under the sentencing
guidelines for acceptance of responsibility after a nolo contendere plea because
defendant had not demonstrated any responsibility for his criminal conduct).
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determination, the sentencing court is permitted to consider “‘any admissible

statement made by the defendant pre-trial, at trial, or post-trial,’ or by ‘other

competent evidence properly admitted at the sentencing hearing.’” Id. at 87-88

(quoting State v. Shreves, 60 P.3d 991, 996 (Mont. 2002)).

          Here, the sentencing court expressed concern about the way in which

Pendleton entered his plea but avoided acknowledging “what it is that he was

accused of and what it is that he had done according to the . . . factual basis in

this case.”     The evidence bears out this concern.      Due to his Alford plea,

Pendleton was not required at the plea hearing to state what he had done to

commit willful injury causing bodily injury. Instead, he only agreed that if the

witnesses listed in the minutes of evidence testified in a manner consistent with

the information contained in the minutes, he would be found guilty of willful injury

causing bodily injury. The sentencing court noted that at the time of sentencing,

Pendleton “still [took] issue in some unspecified way” with the minutes of

evidence used to establish a factual basis for his conviction. In other words,

Pendleton continued to deny the factual basis for his conviction after pleading

guilty.

          Pendleton claims he acknowledged his actions during the allocution

portion of the sentencing hearing. A review of his statement shows Pendleton

acknowledged he was being sentenced for “things that I did do” but never stated

what those things were. Nor did Pendleton recognize the severity of the harm he

caused his fiancée. Instead, he downplayed the severity of his act—striking her

in the face “approximately fifteen times in total”—by saying he “didn’t intentionally
                                          7



mean to do it” and by characterizing his act as “a bad mistake” and “stupid.”

Several times at sentencing, Pendleton stated he had never done “anything like

that” or that he does not “do things like that.” In spite of these claims, Pendleton

said later during the sentencing hearing that he had “changed.”

       Pendleton’s attempt to place the blame on outside factors also shows he

failed to accept responsibility for his actions. Despite claiming he was “not going

to blame alcohol for [his] mistake or [his] actions,” Pendleton went on to say that

he had drunk “a little too much” on the night of the assault because “it was a

holiday.” He also tried to shift the blame to the area he was living at the time of

the assault, which he categorized as “a bad place,” claiming he “never really

wanted to be there from the beginning.”

       The record regarding Pendleton’s remorse is also concerning.          During

allocution, he did apologize to “the State of Iowa” and “the City of Marshalltown,”

and asked the court to “just forgive” him. However, Pendleton never apologized

to or even mentioned the victim of his crime.       We also note the distinction

between expressing remorse and accepting responsibility for one’s actions. See

United States v. Burns, 925 F.2d 18, 20-21 (1st Cir. 1991) (affirming the

sentence imposed despite defendant’s sincere remorse after recognizing the

sentencing court “drew a distinction between remorse and acceptance of

responsibility); Meynardie, 616 S.E.2d at 26 (noting that a defendant’s apology

“does not definitely establish that defendant took responsibility or his criminal

conduct”).
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      The district court did not consider an improper factor in finding Pendleton

failed to take responsibility for his actions. Pendleton failed to acknowledge his

wrongdoing before or after entering his plea.     At the sentencing hearing, he

continued to minimize the seriousness of his actions and failed to show remorse

toward the victim.      Because the sentencing court did not consider an

inappropriate matter in reaching its conclusion, no abuse of discretion occurred.

      We further conclude the district court properly exercised its discretion in

sentencing Pendleton to a term of incarceration and declining his request for

probation. In imposing the sentence, the court cited the need to deter Pendleton

and others in the community from engaging in similar acts, Pendleton’s need for

rehabilitation, and the community’s need to be protected from harm. Pendleton

had only one prior conviction—a 2010 possession-of-a-controlled-substance

charge, for which he received a deferred sentence—but his deferred judgment

was revoked, showing he was not successful on probation. Although Pendleton

has not been convicted of other violent crimes, the severity of the injuries he

inflicted here, coupled with his lack of remorse and failure to take responsibility

for his actions, warrants the prison sentence imposed.

      Nothing in the record convinces us the sentence imposed was

unreasonable or based on untenable grounds. Accordingly, we affirm.

      AFFIRMED.
