                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0382
                            Filed December 9, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTOINE DYMETRAE TURNER,
     Defendant-Appellant.
________________________________________________________________

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

(plea) and Marlita A. Greve (sentencing), Judges.



      A defendant appeals his sentence after entering guilty pleas to possession

of marijuana with the intent to deliver and failure to affix a drug tax stamp.

AFFIRMED.



      Leah D. Patton, Walcott, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Sheryl A. Soich,

Assistant Attorneys General, for appellee.



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

          Antoine Dymetrae Turner appeals his sentence after entering guilty pleas

to possession of marijuana with intent to deliver and failure to affix a drug tax

stamp.      Turner claims the trial court abused its discretion by relying on an

improper factor in sentencing him and by failing to place him on probation. We

affirm.

I.        Background Facts and Proceedings

          During the execution of a search warrant, officers found 300 grams of

marijuana belonging to Turner. No Iowa drug tax stamp was affixed to the drugs.

After Turner was charged with possession of marijuana with intent to deliver and

failure to affix a drug tax stamp, the State gave notice of its intent to seek

sentencing enhancements on both charges under Iowa Code section 902 (2013)

and on one charge under Iowa Code section 124.411. The parties reached a

plea agreement. In exchange for Turner’s plea of guilty to both charges, the

State agreed to forgo all sentencing enhancements and recommend concurrent

prison terms at sentencing. The agreement also provided Turner “may request

that the court consider granting probation.”     Concurrence of the court was a

condition of the plea agreement. The court accepted Turner’s plea.

          At the sentencing hearing, the State recommended concurrent sentences,

stating Turner had received the benefit of all community-based resources for

rehabilitation but had continued to commit drug offenses.        Defense counsel

claimed probation was appropriate, noting Turner had obtained his GED during

an earlier incarceration and noting the positive developments in Turner’s life in
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the past year; Turner had obtained and maintained employment, had received a

substance abuse evaluation, was in the process of starting intensive outpatient

treatment, and had a relationship with his girlfriend and his minor child. During

his right of allocution, Turner told the court:

              I just appreciate the opportunity because I see that I was
       facing quite a bit more time. I then plead out to . . . the five
       years . . . . And I’m just thankful that I kind of got a second chance
       from that because I could have been going for a little bit longer than
       that.

       The district court stated its reasons for sentencing Turner to concurrent

five-year prison terms:

               THE COURT: Well, Mr. Turner, my job is to look at the least
       restrictive, going to the worst, and in doing that, I take into account
       what I read here in the presentence investigation report (PSI) which
       gives me a very unflattering view of your criminal history. I’m not
       taking anything into account in your criminal history, unless there’s
       been an actual disposition. So the items that say in here dismissed
       or no disposition, I’m totally ignoring those.
               And in ignoring those, you still have a quite lengthy both
       juvenile record and adult record, with the vast majority of which is
       related to marijuana. You have been to prison. You’ve been out of
       prison. You’ve been to prison. You’ve had work release revoked.
       You’ve had probation revoked. You continue to use and sell
       marijuana. You’re telling me now that you're working—you worked
       maybe twenty hours in this past month.
               ....
               . . . In this last year, you haven’t gone and looked for . . . any
       type of substance abuse evaluation until November or December of
       last year, you haven’t started any treatment program yet, and you
       are still using marijuana. So at this point, I think the court has no
       other choice, based on your criminal record, your sporadic
       employment history, the continued use of marijuana, the lack of or
       level of work that you had in the last year and failure to get anything
       better, and failure to do much about your substance abuse, . . . but
       to give you a prison sentence.
               And I hope that the time you’re in prison, you stop smoking
       marijuana. At some point, you’ve got to stop because you got quite
       a break. You are right. You got a recommendation from the State
       of two five-year sentences to run concurrent, and they’re not
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       seeking an habitual offender enhancement or the [section] 124.411
       enhancement, which would put you looking at a lot longer time. So
       I think you’re right, Mr. Turner. You’ve had your second chance,
       but your second chance includes going to prison and hopefully
       having enough time that you can get your marijuana usage under
       control.

       Turner timely appealed and seeks resentencing.

II.    Scope and Standard of Review

       We review a sentence imposed in a criminal case for correction of errors

at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Turner’s sentence

is within the statutory limits. “[T]he decision of the district court to impose a

particular sentence within the statutory limits is cloaked with a strong

presumption in its favor, and will only be overturned for an abuse of discretion or

the consideration of inappropriate matters.” Id. “An abuse of discretion will be

found only when the discretion is exercised on grounds which are clearly

untenable or to an extent clearly unreasonable.” State v. Thomas, 520 N.W.2d

311, 313 (Iowa Ct. App. 1994) (stating the court’s “use of an impermissible

sentencing factor” is an abuse of discretion requiring resentencing).

III.   Sentencing Factors

       Turner claims the court relied on an improper sentencing factor when it

stated he was receiving “quite a break” due to the State’s agreement not to

pursue the enhancements. Turner fails to specify why the court’s statement was

improper, claiming only: “Essentially, the district court stated that [Turner] had

already received a substantial break with regard to the enhancements so he was

not going to get another break with probation. This sentencing consideration was

improper.” Turner cites no authority for this conclusory proposition, and we are
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not persuaded.    The court’s mention of the State’s agreement to decline to

pursue sentencing enhancements shows its recognition of Turner’s criminal

history, i.e., the criminal history making those enhancements possible. Because

Turner’s criminal history is a sentencing factor the court was required to consider,

the court did not abuse its discretion. See Iowa Code § 907.5(1)(2) (requiring the

court, before suspending a sentence, to consider the “defendant’s prior record of

convictions and prior record of deferments of judgment”).

       Additionally, when the court stated, “[Y]ou got quite a break. You are

right . . . ,” the court was parroting Turner’s earlier comments: “I kind of got a

second chance.”       In making this comment, the court was considering only

Turner’s earlier prosecuted offenses and good fortune as it discussed the

leniency the State was currently demonstrating by not pursuing possible

enhancements, a fact that Turner himself specifically stated. Accordingly, the

court’s comment was not improper, and the court did not consider impermissible

sentencing factors.

IV.    Court’s Failure to Order Probation

       Turner claims the court abused its discretion in failing to grant his request

for probation. He contends the court “did not fully and properly consider and

credit” his “positive life changes” while giving “too much weight to [his] criminal

history and his marijuana [use].” Turner also claims, if the court believed he had

an issue with drug addiction, “granting probation with the condition that he

complete treatment, not ordering prison, would have better addressed this

problem.”
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       During the sentencing hearing, Turner admitted he was currently addicted

to marijuana and had smoked marijuana the weekend prior to the sentencing

hearing. Our de novo review of the record shows Turner has demonstrated an

unwillingness to abide by the law in the past and is presently unable to refrain

from using drugs. The PSI reveals Turner had already been on probation and

parole, as well as placed in other residential correctional programs, without

success. In recommending a sentence of incarceration, the PSI noted the State

had exhausted all community-based treatment resources. In light of Turner’s

failure to avail him of previous lenient sanctions and his continued violation of the

law, the court did not abuse its discretion in weighing the appropriate factors and

placing greater weight on Turner’s poor chance of reform while on probation.

See State v. Hopkins, 860 N.W.2d 550, 555 (Iowa 2015) (“[A] court makes each

sentencing decision on an individual basis and seeks to fit the particular person

affected.”); State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983) (holding “right of

an individual judge to balance the relevant factors in determining an appropriate

sentence inheres in the discretionary standard”).

       AFFIRMED.
