                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0975
                                  Filed May 16, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRANDON T. GANAWAY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.




      Brandon Ganaway appeals, claiming the district court abused its discretion

in sentencing him. AFFIRMED AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*

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

       Brandon Ganaway appeals, claiming the district court abused its discretion

in sentencing him.     We discern no abuse of discretion in the district court’s

sentencing decision, and we affirm the court’s order. We remand the case to the

district court so that it may issue a nunc pro tunc order to correct the clerical error

in the written order with regard to the imposition of fines.

I.     Background Facts and Proceedings

       Brandon Ganaway pled guilty to possession of a controlled substance

(methamphetamine) and delivery of a controlled substance (methamphetamine).

See Iowa Code § 124.401(1)(c)(6) (2016). The district court entered an order

allowing Ganaway, who had a criminal record dating back to 1994, to attend

inpatient substance abuse treatment at the Salvation Army pending sentencing.

Ganaway was terminated from the Salvation Army after five days for violation of

various rules, which prompted his re-arrest.

       The department of corrections’ presentence investigation report (PSI)

recommended Ganaway be sentenced to prison.                The PSI preparer opined

Ganaway “has shown he is not willing to become a law-abiding citizen and/or

comply with the current conditions of supervision.” At the sentencing hearing, the

prosecutor “acknowledge[d] that we’re dealing with a defendant [who] has a

criminal history that is colored in terms of criminal offenses and opportunities and

dispositions.” The prosecutor observed Ganaway “struggled following rules, being

where he was supposed to be, being on time, being up front with his probation

officer,” and if he “cannot do that, that tells the State that he will not be successful

on probation and leaves the State with no other choice [than] to recommend
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incarceration.”   Ganaway addressed the court at length with regard to his

sentence, stating in part, “I didn’t do anything in [the Salvation Army] . . . to be

kicked out of there like that. . . . I was kicked out of [t]here for a reason that I feel

was really minute.” He requested “an opportunity to at least get some help, to go

to treatment.”

       The district court sentenced Ganaway to an indeterminate term not to

exceed ten years on each count, the terms to run consecutively, and imposed the

one-third mandatory minimum for each count. The court stated its reasons for the

sentence as follows:

               For the past [twenty-three] years you have done nothing
       productive. You were in trouble as a youth. You had problems with
       the law in ‘96, ‘98, 2001, 2000, 2004, [2005], [2007], [2010], [2011],
       [2012], on and on and on. The record reflects the Court has been
       extremely lenient with you, repeatedly giving you probations, which
       you repeatedly failed. Even when you were sent to prison, you were
       given parole, and you failed at that. This court took a chance on you.
       I listened to what your lawyer said. He told me you were absolutely
       sincere.
               ....
               . . . . People, in my experience, who really want treatment—
       and I’ve been doing this for [twenty-two] years, and I’ve presided over
       the drug court for two years, and I have placed people in Bridges
       again and again and again, and I’ve removed them from Bridges
       numerous times. People who really want treatment are desperate.
       Desperate. They will do anything. They won’t blame others. They
       won’t throw other people over the bus—under the bus for their own
       failures. You were trusted. You were trusted, and you failed. And
       now you come in here this morning and you claim it’s someone else’s
       fault. That’s—that is a—in my view, that is a clear inability on your
       part to understand what’s going on here.
               Your lawyer tells me you left the facility because it was faith-
       based and that just doesn’t fit with you. You didn’t say anything
       about that. The PSI didn’t say anything about that. There’s nothing
       in the PSI that talks about you didn’t gain any traction at Salvation
       Army because someone unfairly treated you about that.
               I should think that a drowning man would grab onto anything
       and cling to it, and that’s what Salvation Army was for you. That was
       your last clear chance, and to say I’m disappointed is a gross
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understatement. I took a chance on you. I trusted you, and I listened
to what your lawyer said, and you blew it. You wasted it. That was
your last-break opportunity at this stage of your life, and you wasted
it. You just wasted it. And I can’t tell you how disappointed I am.
        I don’t give trust easily, especially to someone who’s got a
criminal record that goes back [twenty-three] years, has failed at all
their probations, has failed at their paroles, and I still trusted you.
And you couldn’t handle it. Now you want more trust, when there is
nothing here to show that you can be trusted. That—I understand
what you want, but what you say is just hot air. A man’s measured
by what they do, not by what they say. Change comes from different
actions, not different words.
        And this is a sad situation, Mr. Ganaway. You are wasting
your life. You are wasting your life. You’ve already wasted more
than two decades, and now you’re looking at two more decades
wasted, letting other people take care of your children because
you’re not responsible enough to do that. Let the taxpayers care for
your children, because you don’t. Let the mothers care for the
children, because you won’t.
        A drowning man will grab at anything. You’re not at the
bottom yet, Mr. Ganaway. Successful substance abuse treatment
begins with the addict conceding they cannot do it on their own, that
they’re an abject failure, and pleading for help and willing to do
anything for it. You’re not there yet. You’re—you have not yet hit
the bottom. You’re still blaming others.
        ....
        You’re adjudged guilty of possession of a controlled
substance with intent to deliver methamphetamine and sentenced to
serve not more than ten years in prison. You’re adjudged guilty of
delivery of a controlled substance and sentenced to serve a term of
not more than ten years in prison.
        These sentences will run consecutively. . . .

The following colloquy then took place:

       DEFENSE COUNSEL: Your Honor, Mr. Ganaway has asked
me to ask the Court to reconsider these sentences—
       COURT: I will not reconsider.
       DEFENSE COUNSEL: —to run concurrent. That’s all.
       COURT: They will not be reconsidered. I have made my
point. I gave you your chance. I gave you a chance that, frankly,
you didn’t deserve, and you still wasted it.
       There is no mandatory minimum on these sentences, is
there?
       STATE: There’s a mandatory one-third at this time, Your
Honor.
       COURT: On both?
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              STATE: Yes, sir.
              COURT: Well, then mandatory minimums are imposed.

       Ganaway appeals, raising several challenges to his sentence.

II.    Standard of Review

       We review a district court’s sentencing decision either for abuse of

discretion or for a defect in sentencing procedure, such as the district court

considering impermissible sentencing factors. See State v. Formaro, 638 N.W.2d

720, 724-25 (Iowa 2002). Where improper factors are considered, a sentence

must be vacated and the case remanded for resentencing. See State v. Sinclair,

582 N.W.2d 762, 765 (Iowa 1998).

III.   Sentencing Challenges

       Ganaway contends the court abused its discretion by considering “improper

factors”; failing to consider “the entire record when determining the sentence,

including a letter [he] wrote directly to the judge prior to sentencing”; failing to

“understand the mandatory minimum portion of the sentence”; and failing to

“provide adequate reasons . . . on whether [he] should serve consecutive or

concurrent sentences.”

       A.     Improper Factors

       Contrary to Ganaway’s assertion, the district court did not consider an

improper factor by stating Ganaway does not support his children. As Ganaway

acknowledges, the PSI contained information that five of his children lived with

their mothers, two of his children were in foster care, and he owed $80,000 in child

support payments. The defendant’s acceptance of responsibility is a factor for the

court to consider in reaching a sentencing determination. See, e.g., Iowa Code
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§§ 901.5 (instructing the court to examine “all pertinent information,” including the

PSI   and    victim   impact    statements,     prior   to   pronouncing     sentence),

902.1(2)(b)(2)(g) (“In determining which sentence to impose, the court shall

consider all circumstances including but not limited to . . . [t]he defendant’s

acceptance of responsibility.”). In any event, it is clear the district court did not

reach its sentencing decision based on the support Ganaway does not provide for

his children; the court provided many reasons for the sentence it reached,1 and the

court only mentioned Ganaway’s children in evaluating his request for treatment.

Cf. State v. Weaver, No. 15-0040, 2015 WL 6509024, at *2 (Iowa Ct. App. Oct. 28,

2015) (rejecting contention that the court’s mention of the defendant’s relationship

with his children “amounted to the consideration of an impermissible factor in

making a sentencing decision”).

       B.     Letter to the Court

       Prior to sentencing, Ganaway wrote a letter to the court, which included an

apology and contained an “accurate account” of the reasons he was discharged

from the Salvation Army. Ganaway contends on appeal, “It appears . . . the court

did not review this letter prior to sentencing, despite the fact that the letter was in

the record, contained relevant information to Ganaway’s case and proper

sentence, and was actually addressed to the sentencing judge.” But as the State

points out, all the information in the letter was in the record by way of the PSI and


1
  The court also gave its reasons in a written sentencing order. Specifically, the court
checked the following boxes on the sentencing form: “Defendant’s age”; “Defendant’s prior
record of convictions and deferments of judgment, if any”; “Defendant’s employment
circumstances”; “Defendant’s family circumstances”; “Defendant’s mental health and
substance abuse history and treatment options available in the community and the
correctional systems”; “the nature of the offense committed”; and “statutory sentencing
requirements.”
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Ganaway’s allocution. We also observe the letter includes a note saying “Clerk –

Please file. Judge has reviewed,” as well as a file stamp. The court’s explanation

of Ganaway’s sentence indicates it considered the information in the letter and the

record as a whole. Cf. State v. Knight, 701 N.W.2d 83, 87 (Iowa 2005) (“A

defendant’s acceptance of responsibility for the offense, and a sincere

demonstration of remorse, are proper considerations in sentencing.              They

constitute important steps toward rehabilitation.” (citation omitted)).

       C.     Mandatory Minimum

       Ganaway claims the court’s “statements during the hearing” indicate the

court “was unaware the sentences carried mandatory minimums” or that it “had the

discretion to waive a portion of the mandatory minimum.” According to Ganaway,

the court “add[ed] the mandatory minimum[s] as an afterthought.” We disagree.

On the sentencing form, the court checked the boxes stating it found “mitigating

circumstances do not exist, and Defendant is required to serve a mandatory one-

third of the sentence prior to being eligible for parole on Count(s) I and II” and “no

further reduction of the mandatory minimum contained within Iowa Code section

124.413(1) is warranted.” The court’s statement of reasons was sufficient. See

State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014) (“In this age of word

processing, judges can use forms, such as the one available in this case, to check

the boxes indicating the reasons why a judge is imposing a certain sentence.”).

       D.     Consecutive Sentences

       Ganaway contends the court failed to “provide adequate reasons . . . on

whether [he] should serve consecutive or concurrent sentences.” Aside from the

court’s explanation at the hearing, the court explained in the sentencing order, “The
                                          8


sentences are consecutive based upon . . . the separate and serious nature of the

offenses.” We conclude the district court did not abuse its discretion in imposing

consecutive sentences. See State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999) (“The

decision to impose consecutive sentences was discretionary.”).

IV.      Imposition of Fines

         Ganaway also challenges the provision of the written sentencing order

requiring him to pay a fine and surcharge on each count. At the sentencing

hearing, the court indicated the fines would be suspended. Although nothing in

the record suggests the court intended to enter a sentence contrary to its oral

pronouncement, the court failed to suspend the fines and applicable surcharges in

its written order. The State concedes the discrepancy was the result of clerical

error.

         “[W]hen a judgment entry incorrectly differs from the oral rendition of the

judgment merely as a result of clerical error, the trial court holds the inherent power

to correct the judgment entry so that it will reflect the actual pronouncement of the

court.” State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). In such instances, “the

oral pronouncement of sentence controls.”         Id. at 528.   Because the record

demonstrates the discrepancy was the result of a clerical error, we remand the

case to the district court so that it may issue a nunc pro tunc order to correct the

clerical error in the written order. See id. at 529. We affirm in all other respects.

         AFFIRMED AND REMANDED.
