                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0897
                             Filed March 22, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN TODD BROWN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, David L. Christensen,

Judge.



      A defendant appeals a consecutive sentence imposed following

revocation of his deferred judgment for the offense of marijuana possession.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.



      Sarah E. Crane of Davis, Brown, Koehn, Shors & Roberts, P.C., Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                           2


TABOR, Judge.

       Justin Brown challenges his 180-day sentence for marijuana possession,

ordered to run consecutive to the prison terms imposed for possession of

marijuana with intent to deliver, operating a motor vehicle without the owner’s

consent, assault on a police officer causing bodily injury, and first-offense

operating while intoxicated.1      Brown argues that after revoking his deferred

judgment on the possession offense, the district court failed to give reasons

either for choosing the maximum sentence or for deciding it should not begin until

the expiration of the other four terms. Because the district court did not comply

with Iowa Rule of Criminal Procedure 2.23(3)(d) or State v. Hill, 878 N.W.2d 269,

274–75 (Iowa 2016), we vacate the sentence and remand for resentencing.

       To analyze Brown’s sentencing claims, some procedural background is

necessary.    In December 2014, Brown entered guilty pleas to four charges,

reflected in the following chart from the plea and sentencing order:




1
 The district court ordered those sentences (of five years, two years, two years, and one
year) to run consecutive to each other for an indeterminate term totaling ten years.
                                         3


       The district court deferred judgment for the marijuana-possession charge

but entered judgment for the first, second, and fourth offenses listed. The court

directed those sentences run consecutive to each other, for a total of five years,

as reflected in the following chart:




The district court suspended those three sentences and placed Brown on

probation for two years.

       A few months later, the State charged Brown with additional drug

offenses. In September 2015, he entered a guilty plea to possession with intent

to deliver marijuana, a class “D” felony, in violation of Iowa Code section

124.401(1)(d) (2015). The court suspended his sentence and placed him back

on probation, ordering him to reside at the Fort Des Moines Men’s Facility.

       In November and December 2015, Brown violated the terms of his

probation by missing work assignments, failing to return to the residential facility

as required, and repeatedly using marijuana and synthetic marijuana. In January

2016, Brown stipulated to the probation violations.

       On April 20, 2016, Brown appeared for a dispositional hearing. Brown’s

counsel asked the district court to continue his client’s probation. The State

recommended revocation of probation and imposition of Brown’s original

sentences. Nineteen-year-old Brown told the court he wanted to continue his
                                           4


rehabilitation at Fort Des Moines so that he could be employed and act as “a

functioning adult.”

       The court told Brown: “I am astonished that you have been given as many

breaks as you have.” The court decided to revoke Brown’s probation and impose

the original sentences.     After a reminder from the prosecutor, the court also

revoked Brown’s deferred judgment on the marijuana-possession count. The

State proposed the court impose a sentence of 180 days for that count, and the

court adopted the State’s proposal without additional discussion.2 The written

sentencing order—which the court directed the prosecutor to draft—imposed a

prison term not to exceed 180 days and ran it consecutively to Brown’s other

previously suspended sentences.

       On appeal, Brown challenges the district court’s failure to articulate any

reason for imposing the sentence of 180 days in prison or for ordering that time

to run consecutive to the other sentences. We review this sentence for an abuse

of discretion.   See Hill, 878 N.W.2d at 272.         We will reverse a sentencing

decision when an abuse of discretion occurs or if we find a defect in the

procedure. See State v. Thompson, 856 N.W.2d 915, 918 (Iowa 2014).

       When imposing judgment and sentence following revocation of a deferred

judgment, as occurred here, the district court is required to comply with the rules

of criminal procedure relating to sentencing. See State v. Lillibridge, 519 N.W.2d

82, 83 (Iowa 1994). Compliance includes stating on the record the reason for


2
  At the hearing, the court asked, “[W]ould we impose the indeterminate count in jail of
one year?” And the prosecutor replied: “We would propose that since it is marijuana, it
is special, so it would be 180—but there would be language that 180 days can be served
while in the custody of the Department of Corrections while incarcerated.”
                                         5


selecting a particular sentence. Iowa R. Crim. P. 2.23(3)(d). That rule also

applies to the court’s decision to impose consecutive sentences.          Hill, 878

N.W.2d at 273.

       Punishment for first-offense marijuana possession is “imprisonment in the

county jail for not more than six months or by a fine of not more than one

thousand dollars, or by both such fine and imprisonment.”              Iowa Code

§ 124.401(5). In the order revoking Brown’s deferred judgment, the district court

directed him to be “imprisoned for a period not to exceed 180 Days” for the

marijuana possession. Neither at the April 20, 2016 hearing nor in the written

order issued later that day did the district court provide a reason for imposing the

180-day sentence. The court also failed to explain why it decided to run that

sentence consecutively to the others imposed.

       In the absence of any reason associated with the particular marijuana-

possession sentence, the State gravitates to the court’s explanation for revoking

probation, arguing the rationale, “by extension,” also applied to the revocation of

the deferred judgment. The written order states: “Continued probation in this

case is denied because it would not provide reasonable protection of the public, it

is unwarranted, and would unduly lessen the seriousness of the violations.” We

find this generic explanation for revoking probation insufficient to satisfy rule

2.23(3)(d). See State v. Thacker, 862 N.W.2d 402, 410 (Iowa 2015).

       The State also contends the district court incorporated the reasons for

consecutive terms from the 2014 plea and sentencing order into the 2016

hearing.   Those reasons—appearing in checkboxes on the 2014 plea and

sentencing order—included “the separate and serious nature of the offenses,” “in
                                       6


order to carry out the plea agreement,” and “to provide defendant maximum

incentive to comply with the terms and conditions of probation.” Brown argues

the 2014 explanation for consecutive sentences only applied to the suspended

sentences, not the deferred judgment.      We agree.    Because judgment and

sentence had been deferred on the marijuana-possession count, the district

court’s reference to the original sentences did not provide any support for its

decision to tack the 180-day term onto the end of the previously suspended

sentences.

      In Hill, our supreme court encouraged sentencing courts to “give more

detailed reasons for a sentence specific to the individual defendant and crimes”

to satisfy rule 2.23(3)(d). 878 N.W.2d at 275. The Hill court also mandated that

sentencing courts “explicitly state the reasons for imposing a consecutive

sentence, although in doing so the court may rely on the same reasons for

imposing a sentence of incarceration.” Id. (overruling precedent that allowed

appellate courts to infer the same reasons applied as part of “an overall

sentencing plan”).    In this case, the district court did not comply with

rule 2.23(3)(d) or Hill. Accordingly, we vacate the sentence on the marijuana-

possession offense and remand for resentencing.

      CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

FOR RESENTENCING.
