                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0902
                                 Filed May 29, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARRY ALLEN BELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.



      Defendant appeals the sentences imposed for his convictions of driving

while barred and interference with official acts. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael J. Walton, County Attorney, and Robert Bradfield, Assistant

County Attorney, for appellee.



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

       Larry Bell appeals the consecutive sentences imposed for his convictions

of driving while barred as a habitual offender, in violation of Iowa Code sections

321.555(1) and 321.561 (2011), and interference with official acts, in violation of

section 719.1(1). He maintains the district court abused its discretion by failing to

provide specific reasons to impose consecutive sentences. Upon our review of

the record, we affirm.

I. Background Facts and Proceedings.

       On December 3, 2012, Bell was charged with driving while barred, as a

habitual offender, in violation of Iowa Code sections 321.555(1) and 321.561.

Bell was also later charged with interference with official acts, operation without

registration, and failure to wear a seatbelt. Following a bench trial, Bell was

found guilty of each of the four charges.

       Bell was sentenced on May 28, 2013. At the sentencing hearing, the

State recommended a sentence of incarceration for the maximum, two years, for

the operating-while-barred conviction.          The State also recommended the

sentence run consecutive to any sentence not previously served. In support of

its recommendation, the State noted Bell had five previous convictions for driving

while barred in a period of less than three years.

       During the sentencing colloquy, the district court stated:

              Mr. Bell, I do note that you have a substantial history with the
       Driving While Barreds. Numerous Drivings While Barreds as a
       Habitual Offender. Unfortunately, it seems you refuse to learn that
       you must have a valid driver’s license to operate a motor vehicle in
       the state of Iowa. Quite frankly, I think you’re a pleasant
       gentleman. You’re always polite in court.
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             But you aren’t learning from the past that you have to have a
      valid driver’s license to operate a motor vehicle in this state. So the
      Court must consider in sentencing you protection of the community
      from further criminal activity from you and nothing has led me to
      believe you won’t go out and drive some more. It appears the best
      opportunity to prevent you from driving is to incarcerate you with
      the Department of Corrections.
             It will be the judgment and sentence of the Court that under
      case number AGCR 350195 under the charge of Driving While
      Barred as an Habitual Offender, as defined in Sections 321.555,
      Sub 1, and in violation of 321.561, that the defendant shall serve a
      term not to exceed two years in the custody of the Director of the
      Department of Corrections, pay a fine in the amount of a thousand
      dollars.
             As to the Interference with Official Acts, in violation of 719.1,
      Sub 1, the defendant will be sentenced to serve 30 days in jail to
      run consecutive to the time serviced for the Driving While Barred
      charge. All other simples, which are the Operation Without
      Registration and Failure to Wear a Seat Belt, the minimum fines will
      be imposed.
             All sentences to run consecutive to any time the defendant
      has already been sentenced to.

Bell appeals the sentence.

II. Standard of Review.

      Our review of the district court’s sentencing decision is for correction of

errors at law. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). The decision

to impose a sentence within statutory limits is “cloaked with a strong presumption

in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The sentence

will not be upset on appeal “unless the defendant demonstrates an abuse of trial

court discretion or a defect in the sentencing procedure.” State v. Grandberry,

619 N.W.2d 399, 401 (Iowa 2000). 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. Thomas, 547 N.W.2d at 225. In
                                         4


criminal cases the court is to “state on the record its reasons for selecting the

particular sentence.” Iowa R. Crim. P. 2.23(3)(d).

III. Discussion.

       This is yet another in a long line of cases raising the issue of whether an

adequate explanation was given for imposing consecutive sentences on appeal.

Here, Bell concedes we may look to the overall sentencing plan to glean the

court’s reason for imposing consecutive sentences, but he maintains the court

failed to give any reasons that explain such an imposition in this case.

       “If a person is sentenced for two or more separate offenses, the

sentencing judge may order the second or further sentence to begin at the

expiration of the first or succeeding sentence.”        Iowa Code § 901.8.       A

sentencing court must state, on the record, its reason for selecting a particular

sentence. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010) (citing Iowa R.

Crim. P. 2.23(3)(d)).     The court must also provide reasons for imposing

consecutive sentences. Id. “A statement may be sufficient, even if terse and

succinct, so long as the brevity of the court’s statement does not prevent review

of the exercise of the trial court’s sentencing discretion.” State v. Hennings, 791

N.W.2d 828, 838 (Iowa 2010). We may look to the court’s overall sentencing

rationale to glean the reasoning for imposing consecutive sentences. See id.

(“[I]t is apparent to us that the district court ordered the defendant to serve his

sentences consecutively as part of an overall sentencing plan.”).

       In Hennings, our supreme court, reviewing the sentencing colloquy,

stated, “The court spoke at length about the information it considered in making a

sentencing determination and specifically what factors influenced its ultimate
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decision. This is not a situation where the court ‘failed to give even a terse

explanation of why it imposed consecutive, as opposed to concurrent

sentences.’” 791 N.W.2d at 838 (citing State v. Uthe, 542 N.W.2d 810, 816

(Iowa 1996)). In Hennings not a single word or sentence was directly expressed

explaining why consecutive sentences were imposed.

      While we agree with Bell’s contention that the district court provided no

explicit connection between its sentencing plan as a whole and its decision to

impose the consecutive sentence, we can discern no difference between these

facts and the facts in Hennings. We can only conclude the court’s reasoning is

apparent from the overall sentencing rationale.1 See id.

      Thus, we find the district court did not abuse its discretion in imposing

consecutive sentences, and we affirm.

      AFFIRMED.

      Potterfield, J., concurs; McDonald, J., dissents.




1
  See State v. Scott, 12–1531, 2013 WL2146226, at *2 (Iowa Ct. App. May 15, 2013)
(Danilson, J., concurring specially).
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MCDONALD, J. (dissenting)

       As the majority notes, this case is another example of a defendant

challenging the sufficiency of a sentencing court’s explanation for the imposition

of consecutive sentences. As in many of these cases, the defendant set out on

appeal with the wind of authority in his sails only to run aground on contrary

authority. This is not due to the defendant’s lack of navigational skill; instead, the

nautical chart no longer provides meaningful guidance.         See Scott, 2013 WL

2146226, at *2 (Danilson, J., concurring specially) (summarizing the state of the

law). As a service to sentencing courts, the bar, and litigants, we should better

mark the aids on the chart and acknowledge one line of authority silently has

overruled another or attempt to otherwise reconcile the seemingly irreconcilable.

       There is no doubt our cases in this area appear in tension, if not direct

conflict. Bell contends the sentencing court is required to state on the record its

specific reason or reasons for the imposition of consecutive sentences. The

argument is supported by controlling authority. For example, in State v. Jason,

779 N.W.2d 66, 77 (Iowa Ct. App. 2009), the sentencing court articulated a

variety of factors it considered in imposing a term of incarceration but then failed

to articulate whether those same factors related to its decision to impose

consecutive sentences.     This court concluded the statement of reasons was

insufficient:

       The district court provided sufficient reasons to support its decision
       to impose a term of incarceration. It cited the nature of the
       offenses, their ongoing nature, and the continuing course of
       conduct by Jason. However, the court did not provide any reasons
       for its decision to impose consecutive sentences . . . . Although the
       reasons given for imposing consecutive sentences may be the
       same reasons for granting probation, reasons must be identified.
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       Here, the trial court provided no explanation for the imposition of
       consecutive sentences during the sentencing hearing or in the
       sentencing order. Since the trial court gave sufficient reasons for
       imposing incarceration, we vacate only that portion of the sentence
       imposing consecutive sentences and remand for the purpose of
       determining whether the sentences should run consecutive or
       concurrent.

Jason, 779 N.W.2d at 77. (internal citations omitted). Other cases reach the

same conclusion: the sentencing court must specifically identify the reason or

reasons for imposing consecutive sentences. See, e.g., State v. Jacobs, 607

N.W.2d 679, 690 (Iowa 2000) (explaining that court’s statements regarding the

nature of the offense, the harm caused to the victims, and the “cold and

calculated” nature of the crime were “sufficient reasons to support its decision to

impose a term of incarceration . . . [h]owever, the court did not provide reasons

for its decision to impose consecutive sentences”); State v. Oliver, 588 N.W.2d

412, 414 (Iowa 1998) (holding that imposition of consecutive sentences without

explanation of reasons was not sufficient under rule 2.23(3)(d)); Uthe, 542

N.W.2d at 816 (holding that stated reasons for refusal to grant probation were not

a sufficient explanation of why the sentencing court imposed consecutive

sentences); State v. Gasaway, No. 13-0458, 2014 WL 251906, at *1 (Iowa Ct.

App. Jan. 23, 2014) (holding stated reasons were insufficient); State v. Delaney,

526 N.W.2d 170, 178 (Iowa Ct. App. 1994) (vacating sentence where the

sentencing court’s reasons related solely to the denial of probation and stating

that “more is required to enable us to properly perform our review”). In apparent

conflict, the State contends the sentencing court need not specifically identify its

reason or reasons for imposing consecutive sentences so long as the sentencing

court articulates an “overall sentencing plan.” The State cites Hennings for this
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proposition, which is discussed in sufficient detail by the majority. There are

numerous other cases purporting to stand for the same proposition as Hennings,

and they need not be cited here.

      The majority navigates the apparent conflict between the cases by

implicitly holding that Hennings overruled Jason. The majority notes it agrees

with “Bell’s contention that the district court provided no explicit connection

between its sentencing plan as a whole and its decision to impose the

consecutive sentence.” The majority continues, noting “[i]n Hennings not a single

word or sentence was directly expressed explaining why consecutive sentences

were imposed.”    The majority reasons because it “can discern no difference

between these facts and the facts in Hennings . . . [it] can only conclude the

court’s reasoning is apparent from the overall sentencing rationale.” Implicit in

the court’s holding is the conclusion that Jason and Hennings are materially

indistinguishable and Hennings overruled Jason sub silentio. This is a perfectly

reasonable interpretation of Hennings and similar cases; however, it is not the

only possible interpretation. I conclude Hennings is distinguishable from this

case. Moreover, I conclude Hennings and the body of “overall sentencing plan”

cases are wholly reconcilable with Jason and the body of cases requiring a

reason be given for the imposition of consecutive sentences.

      In Hennings, the sentencing court discussed in great detail the reasons for

its sentence, as did the sentencing court here.     In Hennings, however, the

sentencing court imposed consecutive sentences after stating “with all those

things in mind.” 791 N.W.2d at 838. The sentencing court in Hennings thus

clearly identified on the record that the same reasons supporting its decision to
                                          9


impose a term of incarceration also supported its decision to impose consecutive

sentences.    This critical fact redraws the otherwise unhelpful nautical chart.

Rather than overruling Jason and similar cases, Hennings is actually in accord

with the requirement that the sentencing court identify its reason or reasons—

even if terse and succinct—for the imposition of consecutive sentences.             In

contrast, in this case, the sentencing court’s reasons for imposing the particular

sentence related only to the offense of driving while barred as a habitual offender

and only to the reason for choosing incarceration over probation for that

conviction: “It appears the best opportunity to prevent you from driving is to

incarcerate you with the Department of Corrections.”          Unlike Hennings, the

sentencing court in this case never stated the same reasons supporting its

decision to impose a term of incarceration also supported its decision to impose

consecutive sentences.

       The more limited reading of Hennings offered here is more consistent with

the “overall sentencing plan” cases as originally intended. The first decision to

use the “sentencing plan” rationale was State v. Johnson, 445 N.W.2d 337 (Iowa

1989). In that case, the court affirmed the imposition of consecutive sentences

where the sentencing court explicitly stated “these are two separate offenses and

that the sentences shall run consecutively.” Johnson, 445 N.W.2d at 343. The

court explained that the district court’s explanation of its “overall sentencing plan”

shed light on the “particular reasons . . . which appear in the sentencing colloquy,

sentencing order, and presentence investigation referred to by the district court.”

Id. The Johnson court never held the “overall sentencing plan” was a substitute

for the required statement of reasons. Indeed, the Johnson court rejected such a
                                        10

notion by distinguishing State v. Harrington, 349 N.W.2d 758, 763 (Iowa 1984),

stating the court in Harrington “remanded for resentencing where the trial

court . . . . did not state any reason where the two . . . sentences were set to run

consecutively.” 445 N.W.2d at 343. Similarly, in State v. Jorden, 461 N.W.2d

356, 358 (Iowa Ct. App. 1990), we affirmed the imposition of consecutive

sentences where there was an overall sentencing plan and the district court

explicitly stated: “Consecutive sentence was determined to be an appropriate

sentence in this case because of the defendant’s extensive prior criminal history.”

Again, the overall sentencing plan was considered in addition to the sentencing

court’s statement of reasons and not in lieu of the same.

       Other early cases also include at least one reason specifically related to

the imposition of consecutive sentences within the context of an overall

sentencing plan. See, e.g., State v. Kittler, No. 98-1558, 2000 WL 18717, at *1-2

(Iowa Ct. App. Jan. 12, 2000) (affirming sentences where district court explicitly

weighed factors for and against imposition of consecutive sentences); State v.

Terwilliger, No. 98-1781, 1999 WL 1136677, at *3 (Iowa Ct. App. Dec. 13, 1999)

(affirming overall sentencing plan where the sentencing court imposed

consecutive sentences because “of the seriousness of the offenses, the sexual

exploitation involved a vulnerable victim (a child), as well as that the offenses

occurred on different days and constituted separate criminal conduct”). I could

continue to cite similar cases until the bitter end, but the larger point is this:

although Hennings and other cases are cited for the proposition that an overall

sentencing plan can serve as a substitute for the sentencing court’s statement of

reasons for the imposition of consecutive sentences—as the State and majority
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cite Hennings here—that interpretation of Hennings and the similar cases is not

consistent with the rationale and holding of the original cases upon which they

rely.

        Accordingly, I respectfully dissent.
