                    IN THE COURT OF APPEALS OF IOWA

                                 No. 15-0775
                             Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SIMON LUAL ONAK,
     Defendant-Appellant.
________________________________________________________________


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

District Associate Judge.



      A defendant challenges his prison sentence after pleading guilty to third-

offense operating while intoxicated. AFFIRMED.



      Molly E. Alley of Oliver Gravett Law Firm, P.C., Windsor Heights, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

       Simon Onak challenges his indeterminate five-year prison sentence for

third-offense operating while intoxicated (OWI). Onak complains the district court

abused its discretion by “focusing almost exclusively” on his delay in seeking

substance abuse treatment and by failing to credit mitigating factors such as his

family history and mental-health issues. Because the court properly weighed the

relevant factors in choosing a sentencing option aimed at both protecting the

community and rehabilitating Onak, we affirm.

       Onak was on probation for an OWI second offense when he drove with a

blood alcohol content of .114 and rear-ended another vehicle on Southeast

Fourteenth Street in Des Moines.        Onak opted to plead guilty.    At the plea

hearing, his attorney described the agreement with the State as “plead and

argue”—though in exchange for Onak’s admission of guilt, the county attorney

promised to recommend the probation violation run “concurrently to whatever

sentence he may get.” The presentence investigation (PSI) report recommended

commitment to the custody of the Iowa Department of Corrections (DOC) with

placement to be determined after sentencing.            The PSI reported Onak was

eligible for placement at a residential OWI facility.

       At sentencing, the State recommended incarceration not to exceed five

years, concurrent with the probation violation. Onak asked for a forty-eight-day

sentence, with credit for the forty-four days he had already served in the county

jail, and five years of probation. The district court rejected Onak’s request for

probation and imposed a term of incarceration not to exceed five years with

credit for time served, leaving the appropriate place of confinement to the DOC’s
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determination.     The court ordered the sentence for OWI third to be run

concurrent to the sentence imposed in his OWI second probation revocation.

        In giving its reasons for incarceration, the court paid particular attention to

Onak’s history of substance abuse leading to criminal offenses, dating back to a

2001 conviction for public intoxication. Onak also had a conviction for driving

under the influence in 2002 in Colorado and an OWI second conviction in 2013 in

Iowa.    Against that backdrop, the court was skeptical of Onak’s very recent

embrace of substance abuse treatment: “I cannot endanger the welfare and

safety of the public while you profess after ten days that you’re ready to change

your life after all that you’ve done up to this point in time, even on probation

knowing you’re not supposed to drink, and you continue to do so.” The court told

Onak it was in the “best interest of the public to make them safe from your

continued actions until such time as you actually have your substance abuse

issues under control.”

        In a written OWI sentencing order, the court checked boxes to designate

the factors that it found most significant to determining Onak’s sentence, namely:

nature and circumstances of the offense, protection of the public from further

offenses, criminal history, substance abuse history, propensity for further criminal

acts, and maximum opportunity for rehabilitation.         The court also added the

following reason: “Defendant was on probation for an OWI second offense when

he was arrested on this charge.”

        On appeal, Onak contends the district court abused its discretion in

sentencing him to prison. An appellate court will find such an abuse only when

the sentencing court exercises its discretion on grounds or for reasons clearly
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untenable or to an extent clearly unreasonable. State v. Thomas, 547 N.W.2d

223, 225 (Iowa 1996). Ultimately, we review a defendant’s sentence for the

correction of legal error. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006).

       We find no abuse of discretion in the district court’s process of determining

the appropriate sentence to address Onak’s rehabilitation, as well as the

protection of the community. See Iowa Code § 901.5 (2013); see also State v.

Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002). A sentencing court must weigh

the nature of the offense and attending circumstances, the defendant’s age,

character and propensity, and chances of reform. Formaro, 638 N.W.2d at 725.

And before suspending sentence, the court must consider the defendant’s prior

record of convictions, employment status, family circumstances, and any other

relevant factors in Iowa Code section 907.5. Id.

       The district court listened to both parties discuss the PSI report, which

addressed Onak’s age of forty-five, his situation of caring for a disabled cousin,

his own disability status related to severe back problems, his nearly twenty years

living in the United States, and his diagnosis of post-traumatic stress disorder

stemming from his childhood exposure to war crimes in his native Sudan. The

district court acknowledged Onak’s need for substance abuse treatment and

opined that placement at a DOC facility for OWI offenders “would be the best

treatment you could get at this particular point in time to try to deal with the

issues you have.” The court fulfilled its sentencing role in considering the gravity

of the OWI offense and “the particular person affected” by the exercise of

discretion. See State v. Hopkins, 860 N.W.2d 550, 555 (Iowa 2015).
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      It was not an abuse of discretion for the district court to place greater

weight on the need to protect the public from Onak’s propensity to drive while

under the influence than on his belated commitment to outpatient substance

abuse treatment.    See 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.
