                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1669
                             Filed February 24, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHNATHAN FITZGERALD CLARKE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.




      Johnathan Clarke appeals his sentence following his guilty plea to one

count of second-degree theft, asserting he should have been given a suspended

sentence and placed on probation. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       Johnathan Clarke pled guilty to one count of theft in the second degree, a

class “D” felony, in violation of Iowa Code section 714.2 (2013).         He was

sentenced to a term of incarceration not to exceed five years. He now appeals,

asserting he should have been given a suspended sentence and placed on

probation.    We conclude the district court did not abuse its discretion when

imposing the term of incarceration. Consequently, we affirm.

       We review sentencing decisions for an abuse of discretion.         State v.

Evans, 672 N.W.2d 328, 331 (Iowa 2003). An abuse of discretion is only “found

when the court exercises its discretion on grounds clearly untenable or to an

extent clearly unreasonable.”    Id.   Sentencing decisions “are cloaked with a

strong presumption in their favor” and “will not be upset on appellate review

unless the defendant demonstrates an abuse of trial court discretion or a defect

in the sentencing procedure, such as trial court consideration of impermissible

factors.”    State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000) (citations

omitted).

       The sentencing court articulated its reasons for the sentence as follows:

               Well, Mr. Clarke, the purpose of sentencing you is to do two
       things, it’s meant to rehabilitate you and to protect our community
       from further offenses from you. And Mr. Clarke, at some point in
       your life you have to decide what kind of a person you want to be
       and what kind of a future you want to have. What your criminal
       history shows, Mr. Clarke, is that up to this point in time you have
       had a long history of making poor decisions. You’ve been in prison
       at least four times. You’ve been on probation. You’ve been on
       parole.     You’ve had work releases.        You’ve had numerous
       opportunities to go to treatment and to have rehabilitative services,
       and yet you continue to violate the laws of the state of Iowa. And,
       you know, if you want to spend the rest of your life rotating in and
       out of jails and prisons, all you have to do is to continue to make
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      decisions in the future like you have in the past, and I certainly
      hope that’s not how you want to live your life.
               Even after all of being in prison and having your conviction
      overturned, pleading guilty again, being put back on probation, it
      looks like you still have a theft fourth charge that you got in January
      of 2014, and you got this charge back in 2013, knowing all along
      that if you committed criminal offenses you would in all likelihood
      receive the maximum penalties because of the number of times
      we’ve tried things other than prison to rehabilitate you. And no
      matter what the community has offered to you, Mr. Clarke, you
      just . . . keep committing criminal offenses. And you’ve been out of
      trouble maybe for a year. I don’t even think it’s been that long, and
      that’s really not saying very much that, you know, you should give
      me probation because I haven’t been in trouble for a year. Most
      people go their entire adult lives and never commit a criminal
      offense and never have to go to jail or prison, and you’ve been in
      jail and prison many, many times pretty recently.
               And Mr. Clarke, I just don’t think that I can trust you on
      probation. I don’t think that at this stage in your life you can
      complete a probationary period, so I am going to impose a five-year
      prison term here. Now, everybody knows you won’t spend that
      much time in prison, it might be a matter of months, but I think the
      message is important to you and to the community, and that
      message is that if you violate the laws of the state of Iowa and you
      do so on a continuing basis, you will receive the maximum penalty
      that is appropriate or available. And I hope, Mr. Clarke, that after
      this stint in prison you will finally decide that you do want to be a
      productive member of your community, that you want to be a
      mature, responsible adult, and that you will make better decisions
      in the future than you have in the past. But at this point in your life I
      don’t think you’re capable of doing that, and I don’t think I can trust
      you to be on probation, and I don’t think I should put the community
      at risk, which is what I would be doing if I grant you a probationary
      period.

      The record establishes the sentencing court did not abuse its discretion

when imposing its sentence.       It considered proper factors, including Clarke’s

criminal history and the presentence investigation report (after noting objections

and corrections), which states:

      The defendant has been afforded many opportunities at
      rehabilitation via Pretrial release, Probation, Parole, Work Release,
      and the Violator Program. Despite the aforementioned attempts at
      rehabilitation, the defendant has continued to demonstrate a
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       pattern of criminality. The defendant verbalized remorse for his
       crime, but as mentioned previously, he continues to violate the law
       by committing crimes against others in the community. This
       criminal belief system underlies most, if not all, of the defendant’s
       unlawful behavior.
              It is hoped the defendant can benefit from the structure and
       treatment, especially that which is designed to address criminal
       thinking, provided in the penal system. If successful, he has shown
       sporadic ability to maintain work and law-abiding behavior. In light
       of the above and in the interest of community safety, it appears
       placement in the state prison system is the appropriate course of
       action at this time.

A sentence of five years’ incarceration was recommended.

       Having discerned no abuse of discretion on the part of the sentencing

court, we affirm.

       AFFIRMED.
