                    IN THE COURT OF APPEALS OF IOWA

                                 No. 19-0740
                           Filed February 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SALEH ALI NASR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Christopher L.

Bruns, Judge.



      Saleh Nasr appeals the sentence imposed upon his conviction of attempted

burglary in the second degree. SENTENCE VACATED AND REMANDED.



      Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., May, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCOTT, Senior Judge.

      Saleh Nasr pled guilty to attempted burglary in the second degree. At

sentencing, Nasr argued for the imposition of a deferred judgment. The State took

no position. In imposing sentence, the court noted its consideration of Nasr’s

prospect for rehabilitation; protection of the community; deterrence; the nature of

the offense; Nasr’s age; his education, employment, and family circumstances;

and the recommendation contained in the presentence investigation report (PSI).1

The court also noted it considered the relevant portions of the victim impact

statements to the extent it did not disavow them.

      In choosing whether to grant Nasr’s request for a deferred judgment, the

court explained:

      [Y]ou appeared in front of me very early in this case . . . . I am
      confident I told you as part of these proceedings that you need to do
      what [your counsel] told you to do and that bad things were going to
      happen if you didn’t listen to what [he] told you to do.
              You then proceeded to commit a number of violations of your
      pretrial release. To the extent those involve alleged crimes that you
      haven’t been convicted for and you won’t be convicted for I’m not
      relying to any extent on those alleged violations, but there were
      separate and distinct violations of your pretrial release.
              ....
              I believe that a primary reason why you have stayed out of
      trouble since you entered your guilty plea is there is a gigantic
      hammer hanging over your head and you know this case is assigned
      to me and you know that hammer will fall if you don’t stay out of
      trouble. I hope that you have turned over a new leaf and that your
      brain is maturing and that you are realizing that you may have some
      different perspectives due to your culture than are accepted in
      America with regard to select issues, but I have no definitive way of
      knowing whether that is the case or whether your relatively good
      behavior is because of the hammer. My guess is that it’s some of
      both.


1The court had previously disavowed significant portions of the PSI and therefore
explained it placed little weight on the recommendation contained therein.
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               I generally reserve deferred judgments for defendants who
       have convinced me from early in the life of their case that they see
       the error of their ways. And I view those as folks who have earned
       a chance to expunge their record and not have a felony conviction
       on their record, folks who have made a mistake and have very
       quickly realized it was a mistake and tried to correct their ways.
               I generally view prison as a solution for folks who have either
       committed such heinous acts that to protect society they need to be
       incarcerated or folks who have a history or a presentation that is such
       that my concern is if I don’t incarcerate them, society will not be safe
       either from property crimes or crimes against persons.
               I would say, Mr. Nasr, that you fall between those two points.
       I do not think you have earned a deferred judgment in this case. I
       would not sleep well at night giving you a deferred judgment knowing
       that other people for whom I have denied a deferred judgment and
       for whom I will likely deny deferred judgments going forward. On the
       same token, I would not sleep well sending you to prison knowing
       that you’re a young man who likely does not have a mature brain,
       who for the last several months has managed to stay out of trouble
       which gives me good reason to believe you can stay out of trouble
       going forward assuming there is sufficient motivation for you to do
       so.

(Emphasis added.) The court ultimately sentenced Nasr to a suspended term of

imprisonment not to exceed five years and placed Nasr on probation for three

years. In its written sentencing order, the court explained:

       The reasons for this sentence are the Defendant’s age, employment,
       family circumstances, prior record, the facts and circumstance of this
       offense, contents of the Presentence Investigation Report exclusive
       of those disavowed by the court, and the belief that this sentence will
       provide the greatest benefit to the Defendant and the community.
       The court did not grant Defendant the requested deferred judgment
       because, even excluding charged but unproven criminal conduct
       since his initial arrest, his history of pretrial violations of conditions of
       release and the nature of this offense were such that a deferred
       judgment was not merited.

       Nasr now appeals, arguing the sentencing court abused its discretion by

applying a personal and inflexible sentencing policy as to deferred judgments. 2


2 Nasr alternatively argues the court considered improper information in
sentencing. Given our disposition, we need not reach the issue.
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Nasr argues the following language shows the court operated under a fixed

sentencing policy that essentially dissolved the court’s exercise of discretion:

       I generally reserve deferred judgments for defendants who have
       convinced me from early in the life of their case that they see the
       error of their ways. And I view those as folks who have earned a
       chance to expunge their record and not have a felony conviction on
       their record, folks who have made a mistake and have very quickly
       realized it was a mistake and tried to correct their ways.
               ....
               . . . . I would not sleep well at night giving you a deferred
       judgment knowing that other people for whom I have denied a
       deferred judgment and for whom I will likely deny deferred judgments
       going forward.

The State counters that courts are allowed to take general stances on particular

sentencing issues so long as the court considers the particular facts of the case at

sentencing.

       “When a sentencing court has discretion, it must exercise that discretion.”

State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). Sentencing courts are “not

permitted to arbitrarily establish a fixed policy to govern every case, as that is the

exact antithesis of discretion.” State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa

1979) (quoting State v. Jackson, 204 N.W.2d 915, 916 (Iowa 1973)). Instead, “the

punishment must fit the particular person and circumstances under consideration;

each decision must be made on an individual basis, and no single factor, including

the nature of the offense, will be solely determinative.”      Id. (quoting State v.

McKeever, 276 N.W.2d 385, 387 (Iowa 1979)). The court is to consider “available

options, to give due consideration to all circumstances in the particular case, and

to exercise that option which will best accomplish justice both for society and for

the individual defendant.” Id. (quoting State v. Robbins, 257 N.W.2d 63, 70 (Iowa

1977)).
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       This case is strikingly similar to one in which a defendant claimed the

sentencing court “did not grant him a deferred judgment because he did not fit the

court’s fixed policy of who was eligible to receive a deferred judgment.” State v.

Lachman, No. 09-0630, 2010 WL 200819, at *1 (Iowa Ct. App. Jan. 22, 2010).

While, as here, the sentencing court in that case stated its consideration of relevant

sentencing    factors   specific   to   the       defendant’s   sentence—his   personal

circumstances, the nature of the crime, and the need to protect the community—

the court stated the defendant did not meet the categorical criteria for individuals

it granted deferred judgments, “people who maybe are young and have made a

mistake or who might lose permanently some job or some benefits if they have

judgment entered against them and who otherwise have clean records.” Id. at *2.

While we doubted the court employed a fixed policy, we found the court’s words

gave the appearance of such a policy and took the cautionary course of vacating

the sentence and remanding for resentencing. See id.

       In this matter, the court applied a categorical policy in imposing sentence.

Because Nasr fit the mold of other defendants to whom the court had previously

refused to grant deferred judgments and would continue to refuse to grant deferred

judgments in the future, the court denied Nasr a deferred judgment. Upon our

review, we conclude “it was error to categorically exclude the possibility without

making an individualized sentencing decision.” Cf. State v. Kirk, No. 16-1930,

2017 WL 2875695, at *2 (Iowa Ct. App. July 6, 2017) (emphasis added). The court

should have rested its determination on Nasr’s circumstances only, not those of

other defendants. While this is a close case, the court’s words, at a minimum, give
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the appearance of a fixed sentencing policy. As a result, we again choose to take

the cautious route and vacate the sentence and remand for resentencing.

      SENTENCE VACATED AND REMANDED.
