                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1363
                               Filed April 8, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALAN SCOTT LAWTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, James S.

Heckerman, Judge.



      Defendant appeals from a sentence imposed following a remand for

resentencing. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Amy Zacharias,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.

          Alan Lawton appeals from a sentence imposed following a remand for

resentencing for theft in the second degree, as a habitual offender. He maintains

the district court mistakenly believed it could not impose a different sentence and

thus failed to exercise its discretion.       He also maintains the court failed to

consider any mitigating factors when resentencing. Because we find the district

court properly exercised its discretion during the remand for resentencing, we

affirm.

I. Background Facts and Proceedings.

          Following a jury trial, Lawton was found guilty of theft in the second

degree on March 20, 2013. He waived his right to a jury trial and agreed that the

habitual offender enhancement would be tried to the bench. The court found he

was guilty as a habitual offender. Lawton was sentenced to an indeterminate

term of incarceration not to exceed fifteen years.

          Lawton appealed his conviction and sentence, and our supreme court

transferred the case to the court of appeals. On April 30, 2014, we affirmed the

conviction but remanded for resentencing because the trial court failed to

articulate reasons for the sentence on the record.           See State v. Lawton,

No. 13-0605, 2014 WL 1715064, at *6 (Iowa Ct. App. Apr. 30, 2014).

          Lawton was resentenced on August 4, 2014. The State recommended the

court impose the same sentence that was previously imposed.                 Lawton

requested probation with placement at a residential care facility (RCF). Lawton

stated, “I would like—yeah, I would like to go to RCF. I would like probation. I

feel that, you know, yeah, I done everything I can in prison, serving almost two
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years. I can be—you know, functioning, whatever you want to call it, you know,

member of society.” The court responded:

             And I note that based upon the record before me here that I
      sentenced you to 15 years in prison based upon the enhancement
      of that penalty. And the only reason we’re here today, sir, and I
      understand what [Lawton’s attorney] has asked for me to
      reconsider the sentence or to impose a different sentence, but is for
      me to state why I am imposing the 15-year-sentence, and it’s
      because you have twice been previously convicted of felonies. And
      that’s why the enhancement of the sentence was imposed was
      because of your prior record.
             ....
             All right. So the—and I understand that you feel you’ve
      received the maximum rehabilitation you’re going to receive
      through the Department of Correctional Services by way of
      placement at the institution. However, I can’t ignore the fact you
      have this prior criminal history. And so for purposes of the record,
      the reason that I imposed previously the 15-year sentence and the
      reason that I am sentencing you to 15 years today is for the same
      reasons, because of your prior record. And I feel that—I felt then
      and I feel now that that was the most appropriate way to protect the
      public and to impose the punishment that was most appropriate
      and to give you an opportunity to rehabilitate yourself in view of the
      fact the lesser means have not been adequate previously.

Lawton appeals.

II. Standard of Review.

      Where, as here, the defendant does not assert the imposed sentence is

outside the statutory limits, we review for an abuse of discretion.       State v.

Thomas, 547 N.W.2d 223, 225 (Iowa 1996). An abuse of discretion is found only

when the sentencing court exercises its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable. Id. We review both the

court’s stated reasons made at the sentencing hearing and its written sentencing

order. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).
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III. Discussion.

      Lawton maintains the district court mistakenly believed it did not have the

discretion to impose a different sentence at resentencing and thus failed to

exercise its discretion.   He also maintains the court failed to consider any

mitigating factors when resentencing him.

      When a remand order does not limit the purpose of the remand, the

district court can reconsider all of the discretionary aspects for sentencing based

on the offenses for which the defendant was convicted. State v. Jacob, 644

N.W.2d 695, 697 (Iowa 2001).         Moreover, “[w]hen a sentencing court has

discretion, it must exercise that discretion. Failure to exercise that discretion

calls for a vacation of the sentence and a remand for resentencing.” State v.

Ayers, 590 N.W.2d 25, 27 (Iowa 1999).

      We do not believe the district court failed to exercise its discretion. The

court acknowledged Lawton had requested a different sentence but then

explained why the same sentence was still warranted. Specifically, the court

referenced Lawton’s two felony convictions as well as the best way to protect the

public, impose punishment, and provide opportunity for rehabilitation.

      Lawton also maintains “[t]he court did not consider any mitigating

circumstances or chances at rehabilitation.” We note the court expressly stated

that one of the reasons for the sentence was “to give [Lawton] an opportunity to

rehabilitate [him]self in view of the fact the lesser means have not been adequate

previously.” We view this statement as describing the court’s view of Lawton’s

chances of rehabilitation in a setting other than prison. The court is not “required

to specifically acknowledge each claim of mitigation urged by a defendant.”
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State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). Moreover, “the failure to

acknowledge a particular sentencing circumstance does not mean it was not

considered.” Id.

      Because we find the district court properly exercised its discretion during

the remand for resentencing, we affirm.

      AFFIRMED.
