                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0973
                            Filed October 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

COLLIN RUSH BRANTLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.



      Collin Rush Brantley appeals his sentence following a plea to possession

of a controlled substance arguing that the district court erred by imposing a

suspended sentence with probation rather than a deferred judgment. AFFIRMED.



      Stuart G. Hoover of Blair & Fitzsimmons, PC, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



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

takes no part.
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VAITHESWARAN, Presiding Judge.

         Twenty-four-year-old Collin Rush Brantley pled guilty to possession of a

controlled substance (cocaine base) with intent to deliver, in violation of Iowa Code

section 124.401(1)(b)(3) (2016) (Count I).1 The district court sentenced him to a

prison term not exceeding twenty-five years, imposed a mandatory minimum term

of ten years, but suspended the sentence and placed him on probation for five

years. On appeal, Rush Brantley contends “the district court erred by refusing to

grant a deferred judgement to [him], and instead granting a suspended sentence

with a mandatory minimum if revoked.” Because the district court’s sentence fell

within statutory limits, our review is for an abuse of discretion. State v. Valin, 724

N.W.2d 440, 443–44 (Iowa 2006).

         The district court considered the defense’s request for a deferred judgment

as well as Rush Brantley’s relative youth. The court acknowledged Rush Brantley

did not “have the same opportunities that other folks had to learn some things as

a young man.” But the court found the need for “some accountability,” given

previous time served in prison and unsuccessful efforts at rehabilitation. The court

concluded this was not “an appropriate case for a deferred judgement” and denied

“that request because of the seriousness of the offense and the criminal history.”

We discern no abuse of discretion in the court’s statement of reasons.

         In reaching this conclusion, we have considered Rush Brantley’s contention

that the presentence investigation report incorrectly stated he was ineligible for a

deferred judgment. The prosecutor addressed this error at the outset. He stated,



1
    Iowa Code § 124.401(1)(b)(3) (effective July 1, 2014 to June 30, 2017).
                                          3


“Your Honor, the presentence investigation is incorrect about Mr. Rush Brantley’s

status vis-à-vis a deferred judgement. He is, in fact, eligible.” Because the error

was corrected before the court imposed sentence, we find the argument

unpersuasive.

       We are similarly unpersuaded by Rush Brantley’s suggestion that the

district court improperly relied on dismissed charges. See State v. Gonzalez, 582

N.W.2d 515, 516 (Iowa 1998) (“A court may not consider an unproven or

unprosecuted offense when sentencing a defendant unless (1) the facts before the

court show the accused committed the offense, or (2) the defendant admits it.”).

The prosecutor expressly exhorted the court not to consider the dismissed

charges, stating:

       [Rush-Brantley] does not have at this time any prior felony
       convictions. He did have a felony conviction . . . which was reversed
       on appeal and later dismissed and he had a felony conviction . . .
       that was set aside in a post-conviction-relief action after his arrest in
       this case. So he doesn’t have any prior offenses which would
       disqualify him from consideration for a deferred judgement.

Later, in summarizing Rush Brantley’s criminal history, the prosecutor reiterated

that a “robbery charge was overturned on appeal and dismissed, and of course

that aspect of that incident is not relevant to these proceedings.” He stated a

second conviction “was set aside in post conviction relief and again does not bear

on the sentencing as far as it being a conviction.” The district court did not rely on

either offense in sentencing Rush Brantley.

       Finally, we have considered Rush Brantley’s assertion that the district court

should have declined to impose a ten-year mandatory minimum sentence in light

of a recent legislative change that “allow[s] a court to reduce the mandatory
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minimum from one-third of the maximum, to one-half of one-third.” See Iowa Code

§124.413(3) (2017).2 The change took effect on July 1, 2017, after the date of the

crime to which Rush Brantley pled guilty. Nonetheless, the prosecutor informed

the district court of the statutory amendment and characterized “the range of the

mandatory determinate minimum sentence” as “very broad now.” In imposing

Rush Brantley’s sentence, the district court stated, “[W]hen I came into court, the

number that was kind of in my head for somebody that I thought needed to do this

was ten years for a mandatory minimum.” As noted, the court imposed the ten-

year mandatory minimum sentence. We discern no abuse of discretion or error in

the court’s application of the statute.

         We affirm Rush Brantley’s conviction, judgment, and sentence.

         AFFIRMED.




2   Section 124.413(3) was amended in 2017 to state:
                 A person serving a sentence pursuant to section 124.401,
          subsection 1, paragraph “b”, shall be denied parole or work release, based
          upon all the pertinent information as determined by the court under section
          901.11, subsection 1, until the person has served between one-half of the
          minimum term of confinement prescribed in subsection 1 and the maximum
          indeterminate sentence prescribed by law.
