                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0235
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES MATTHEW SHEPPARD III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge.



      James Sheppard appeals the sentence of incarceration imposed following

his guilty plea to operating while intoxicated, third offense. AFFIRMED.



      Jessica A. Millage of Millage Law Firm, P.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., McDonald, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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Doyle, Presiding Judge

       James Sheppard appeals the sentence of incarceration imposed following

his guilty plea to operating while intoxicated (OWI), third offense. He asserts the

sentencing court abused its discretion in declining to grant him a suspended

sentence. Finding no abuse of discretion, we affirm.

       I. Background Facts and Proceedings.

       By trial information, Sheppard was charged, as a habitual offender, 1 with

operating while intoxicated, third offense, in violation of Iowa Code section 321J.2,

a class “D” felony.2 Sheppard eventually entered into a plea agreement with the

State wherein he would plead guilty as charged, the parties were free to argue the

sentence to be imposed, and the State would not pursue the habitual-offender

sentencing enhancement. Sheppard filed a written guilty plea. At a plea hearing,

the plea court accepted Sheppard’s guilty plea, ordered a presentence

investigation (PSI) report, and set sentencing for a later date.

       About two months later, while out on bond, Sheppard picked up additional

criminal charges—possession of crack cocaine and driving while license denied or

revoked.3 He was arrested and confined to the Polk County Jail, and his pretrial

release bond was revoked.

       Later, a joint sentencing hearing was held on all the charges. For the OWI

offense, Sheppard was sentenced to incarceration for a period not to exceed five

years, to run concurrent with the possession sentence. The State did not pursue


1
  See Iowa Code § 902.8 (2016).
2
  As a result of the traffic stop, Sheppard was also ticketed for driving while suspended
and given warnings for speeding and license plate light infractions.
3
  Shepard was also ticketed for operation without registration.
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the habitual-offender sentencing enhancement.          On the possession charge,

Sheppard was sentenced to forty-seven days in jail and was given credit for the

forty-seven days he had already spent in jail. The driving-while-revoked charge

was dismissed. Sheppard now appeals, asserting the sentencing court abused its

discretion in imposing a sentence of incarceration for the OWI offense.

       II. Scope and Standard of Review

       Our review of a district court’s sentence is limited to the correction of legal

error. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). Imposition of a

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.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

“Discretion expresses the notion of latitude.” State v. McNeal, 897 N.W.2d 697,

710 (Iowa 2017) (Cady, C.J., concurring specially). An abuse of discretion will only

be found when the court exercises its discretion on grounds clearly untenable or

to an extent clearly unreasonable. See State v. Hopkins, 860 N.W.2d 550, 553

(Iowa 2015). This standard is deferential to the sentencing court:

              Judicial discretion imparts the power to act within legal
       parameters according to the dictates of a judge’s own conscience,
       uncontrolled by the judgment of others. It is essential to judging
       because judicial decisions frequently are not colored in black and
       white. Instead, they deal in differing shades of gray, and discretion
       is needed to give the necessary latitude to the decision-making
       process. This inherent latitude in the process properly limits our
       review. Thus, our task on appeal is not to second guess the decision
       made by the district court, but to determine if it was unreasonable or
       based on untenable grounds.

See State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015) (citation omitted).
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       III. Discussion

       On appeal, Sheppard claims the sentencing court abused its discretion

because it “failed to fully consider the opportunity for rehabilitation in the

community, and solely focused on incarceration as the option for [him].” He points

out he “had been attending school and making positive strides in his life.” He

contends a suspended sentence “would have allowed him to remain gainfully

employed and attending school” and would position him “to make payments toward

his considerable court fines.” Further, Sheppard maintains “[i]t is unlikely that [he]

would be able to obtain any treatment if incarcerated, while he had initiated

treatment for substance abuse issues prior to being jailed.”

       “In exercising its discretion, the district court is to weigh all pertinent matters

in determining a proper sentence, including the nature of the offense, the attending

circumstances, the defendant’s age, character, and propensities or chances for

reform.” State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). “In applying the

abuse of discretion standard to sentencing decisions, it is important to consider the

societal goals of sentencing criminal offenders, which focus on rehabilitation of the

offender and the protection of the community from further offenses.” Formaro, 638

N.W.2d at 724.      Although “[a] sentencing court has a duty to consider all the

circumstances of a particular case,” it is not “required to specifically acknowledge

each claim of mitigation urged by a defendant.” State v. Boltz, 542 N.W.2d 9, 11

(Iowa Ct. App. 1995).

       The sentencing court conducted a lengthy colloquy with Sheppard, during

which the court noted that Sheppard picked up additional criminal charges while

he was out on bond awaiting sentencing on the OWI offense. The court also noted
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that this was Sheppard’s sixth OWI offense. Additionally, the court noted that

Sheppard waited some two months after his OWI arrest to obtain a substance-

abuse evaluation and another four months had passed before he began attending

classes. Sheppard admitted he “made mistakes and [has] basically made bad

decisions for [his] life.” He declared, “I am taking responsibility and trying to

change those things.” In listening to Sheppard’s litany of excuses for his conduct,

the court remarked, “[Y]ou talk a good game. You’re just not following through with

what the talk is.” Sheppard asked for probation. The court responded,

              And, sir, I certainly can understand why you would want that.
      But, quite honestly, to protect the public from you, I simply cannot go
      along with what you’re recommending.
              You are an absolute danger until such time as you actually get
      a handle on your substance abuse problem, and you simply have not
      done that. You could profess that there are all these reasons why
      you haven’t been able to do that, but the reality of the situation you
      have is that this is now the sixth time in your life that you have
      committed this particular offense.
              Not to mention the other offenses. It’s not like this is your only
      record. . . . [S]ubstance abuse has been an issue for you most of
      your life. There are possession convictions and other things in your
      record, as well, and you just simply haven’t addressed them.
              So, sir, based upon your prior criminal history and the nature
      of this particular offense and the fact that in this court’s mind you
      have not addressed the issues that continue to bring you to this court,
      it is the judgment of the court that you are adjudged guilty of
      operating a motor vehicle under the influence of alcohol, third
      offense, and shall be incarcerated for a period not to exceed five
      years.

      IV. Conclusion.

      Sheppard does not suggest the sentencing court considered inappropriate

factors, nor does he claim the court failed to provide adequate reasons for the

sentence imposed. We find no abuse of discretion by the sentencing court in

imposing the sentence. In sum, the core of the Sheppard’s argument is that he
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simply disagrees with the district court’s exercise of discretion. This is not a ground

for relief. See, e.g., State v. McDowell, No. 17-0679, 2017 WL 6034123, at *1

(Iowa Ct. App. Dec. 6, 2017) (noting that mere disagreement with sentencing

decision is not a ground for relief).

       Finding no abuse of discretion, we affirm the Sheppard’s sentence.

       AFFIRMED.
