                   IN THE COURT OF APPEALS OF IOWA

                                     No. 19-1291
                                  Filed July 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DENNIS WRAY BONIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hardin County, James A. McGlynn

(guilty plea) and Amy M. Moore (sentencing), Judges.



      A defendant appeals his judgment and sentence for the aggravated

misdemeanor offense of sexual exploitation by a school employee. AFFIRMED.



      C. Aron Vaughn of Kaplan & Frese LLP, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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TABOR, Presiding Judge.

       School bus driver Dennis Bonin pleaded guilty to the aggravated

misdemeanor offense of sexual exploitation by a school employee.             He now

contends that plea was not knowing and intelligent. He also argues the district

court abused its discretion in denying his request for a deferred judgment.

Because Bonin received an appropriate advisory on how to challenge his plea, but

did not do so, his first claim will have to wait until he seeks postconviction relief.

Finding no abuse of discretion in his sentencing, we affirm.

       Bonin drove a bus for the Iowa Falls-Alden School District. According to the

minutes of testimony, he touched the clothed buttocks of a fourteen-year-old

passenger for the purposes of arousing or satisfying his sexual desires. Sixty-six

year-old Bonin entered an Alford plea1 to sexual exploitation, in violation of Iowa

Code section 709.15(5)(b) (2018), an aggravated misdemeanor, in January 2019.

       On appeal, he argues his plea did not comply with Iowa Rule of Criminal

Procedure 2.8(2)(b).2 In particular, he complains the court did not tell him he could

incur surcharges on his fines. See State v. Weitzel, 905 N.W.2d 397, 406 (Iowa

2017). He also argues the plea-taking court wrongly advised him he would not

need to register as a sex offender if he received a deferred judgment. We review

for correction of legal error. State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).




1 An Alford plea allows a defendant to enter a guilty plea without admitting guilt.
See North Carolina v. Alford, 400 U.S. 25, 39 (1970).
2 Recent amendments to Iowa Code section 814.6 limit direct appeals from guilty

pleas. See 2019 Iowa Acts ch. 140, § 28. But those provisions do not apply to
cases like this one where the district court entered judgment before July 1, 2019.
See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019).
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       The State argues Bonin failed to preserve error on these guilty-plea claims

because he did not move in arrest of judgment. See Iowa Rs. Crim. P. 2.8(2)(d),

2.24(3). Bonin maintains we should forgive this omission because the district court

neglected to advise him of the consequences of failing to file the motion. See

Fisher, 877 N.W.2d at 680.

       The plea-taking court gave Bonin this warning:

       You have the right to file what’s called a motion in arrest of judgment.
       If for any reason you want to try to undo this guilty plea, there’s no
       guarantee that you’d be able to, but if you want to try to undo this
       guilty plea for whatever reason, you have to file this motion in arrest
       of judgment. And that’s an odd sounding term. What it means is to
       stop the sentencing. So you can file this motion.
               The important point that I want to get across to you if you are
       ever going to do it, you have to do it timely. You have to do it within
       at least forty-five days of today and in any event no more than—no
       less than five days before the sentencing. So the key deadline here
       is within forty-five days of today because I’m setting the sentencing
       quite a ways down the road. If you don’t timely file a motion in arrest
       of judgment, then you forever lose the right to file that kind of motion.

       But Bonin insists, because the court did not “mention the word appeal,” the

advisory fell short. Our case law is not that strict. The court gave Bonin adequate

notice of the consequences of not filing the motion by saying it would cause him to

“forever lose” the right to “undo this guilty plea for whatever reason.” And it further

cautioned him that “if you are ever going to do it, you have to do it timely.” We

have found similar advisories sufficient. See, e.g., State v. Taylor, 301 N.W.2d

692, 692 (Iowa 1981) (warning that right to “question the legality of his plea of

guilty” would be “gone”); State v. Akin, No. 18-1378, 2019 WL 2151675, at *1 n.1

(Iowa Ct. App. May 15, 2019) (informing defendant he would “forever lose” his right

to challenge the plea unless he moved in arrest of judgment); State v. Gochett, No.

15-0418, 2017 WL 1735606, at *1 (Iowa Ct. App. May 3, 2017) (advising defendant
                                          4


would be “forever barred from filing a motion in arrest of judgment and forever

attacking this guilty plea”).

       Because he did not move in arrest of judgment, Bonin cannot challenge his

guilty plea on direct appeal. In the alternative, Bonin asks us to preserve these

claims for a postconviction proceeding. Indeed, Bonin is free to raise these alleged

deficiencies as ineffective-assistance-of-counsel claims if he seeks relief in a

collateral action. See Iowa Code § 814.7.

       Next we turn to his sentencing issue, which we review for an abuse of

discretion. See State v. Wickes, 910 N.W.2d 554, 572 (Iowa 2018) (finding no

abuse where the imposition of a prison sentence for sexual exploitation offense

was not based “on grounds clearly untenable or to an extent clearly

unreasonable”). Bonin asked the court to defer judgment. The district court

refused to do so. Instead, the court sentenced him to a term not to exceed two

years with all but thirty days suspended. The court offered this rationale for

ordering jail time:

       Mr. Bonin, I’ve imposed this sentence for a number of reasons. I
       have reviewed the presentence investigation report thoroughly as
       well as the exhibit that was filed here today on behalf of the State. [3]
       And I heard and listened to the victim of your offense come here
       today and read her impact letter to the court.
              Now, while I have considered that your prior criminal record
       does not note offenses of this type, my concern is the point at which
       you let things escalate to with your contact . . . . You were in a
       position of trust, of community trust, of parental trust, and you
       violated that trust in the worst possible way.
              It’s this type of behavior that causes parents fear and concern
       when their children go off to school with folks that are entrusted to


3The presentence investigation report recommended a suspended sentence and
probation. The State offered an exhibit showing suggestive Facebook messages
sent by Bonin to the victim.
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       care for them. I believe affording a jail sentence in this matter is
       appropriate.

       The sentencing court also expressed concern that Bonin continued to

“minimize his conduct in this offense.” As an example, the court pointed to Bonin’s

anemic apology from the PSI: “I’m really sorry if I caused problems for anyone.

That was never my intention.”

       Bonin argues the court abused its discretion by focusing on his “betrayal of

trust,” contending—by their nature—all sexual exploitation offenses share that

characteristic. We reject his argument. The court’s reasoning did not reveal a

fixed sentencing policy. Cf. State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)

(vacating sentence when “court’s personal, well-defined rule precluded the

exercise of its discretion in rendering judgment”). Rather, the court weighed the

pertinent factors and properly exercised its discretion. See Iowa Code § 901.5.

       Bonin also contends the court miscalculated the weight to give aggravating

factors in imposing the jail term and undervalued his redeeming features. Before

deferring judgment, the court must consider “the defendant’s prior record of

convictions or deferred judgments, employment status, family circumstances, and

any other relevant factors, as well as which of the sentencing options would satisfy

the societal goals of sentencing.” See State v. Formaro, 638 N.W.2d 720, 725

(Iowa 2002). But the application of these factors “will not always lead to the same

sentence.” Id.

       The record shows the court considered the relevant factors, aggravating

and   mitigating,   before   deciding    Bonin’s   inappropriate    touching    and

communications with the victim merited a jail sentence and ongoing supervision.
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Plus, the court was rightly troubled by Bonin’s reluctance to take responsibility for

his actions. See State v. Knight, 701 N.W.2d 83, 89 (Iowa 2005) (finding lack of

remorse a pertinent sentencing factor even when defendant enters Alford plea).

The bottom line is that we decline to second guess the weight the court gave the

various factors. See Formaro, 638 N.W.2d at 725.

       AFFIRMED.
