                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0720
                              Filed March 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN MICHAEL KAINE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Defendant appeals from his sentence for possession of a controlled

substance with intent to deliver (marijuana). AFFIRMED IN PART, VACATED IN

PART, AND REMANDED WITH DIRECTIONS.



       William Bushell of Bushell Law Firm, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Brad Waltz,

Assistant County Attorney, for appellee.



       Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.

         Jonathan Kaine appeals from his sentence for possession of a controlled

substance with intent to deliver (marijuana), in violation of Iowa Code section

124.401(1)(d) (2011). Kaine maintains the district court abused its discretion by

not granting his request for a deferred judgment. He also maintains the district

court erred in imposing a ten dollar drug abuse resistance education (DARE)

surcharge. Because we find the district court considered relevant factors and did

not abuse its discretion, we affirm the district court’s imposition of a suspended

sentence. We vacate the illegal part of the sentencing order imposing a ten

dollar DARE surcharge and remand for entry of a corrected sentencing order.

I. Background Facts and Proceedings.

         On January 27, 2012, the State filed a trial information charging Kaine with

one count of possession of a controlled substance with intent to deliver

(marijuana).

         On February 10, 2014, Kaine entered an Alford plea1 of guilty.

         Sentencing was held on April 28, 2014. The State recommended Kaine

receive a suspended five-year prison sentence.              Kaine maintained he was

eligible for a deferred judgment and requested the court grant it. During the

sentencing colloquy, the district court stated:

                 The thing that troubles me—and I guess there are two things
         that trouble me about you, Mr. Kaine. And I know that sequencing
         is such that you are eligible for a deferred judgment. But you’re
         trafficking drugs for a number of years, and this was the substantial
         part of your income, what you did to financially survive.
                 I think of a deferred judgment as being something that is
         special, an individual makes a mistake that is out of character, and,

1
    See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                          3


       thus, he qualifies for a deferred judgment. You’re trafficking drugs
       for a period of years. This isn’t hardly out of character for you.
              What am I missing?

Kaine then responded with why he believed he was a good candidate for a

deferred judgment. The court replied:

               Well, your character seems to be reflective of the record that
       you have. And you don’t have a bad record. I mean, it’s not
       anything to be proud of, apparently minor driving offenses,
       suspended licenses, one—at least one possession of marijuana,
       and now the big-time conviction down in Benton County[2] and this
       conviction. I just don’t know that you’re a suitable candidate for a
       deferred judgment.
               And so I’m going to err if at all on the side of caution, and the
       caution would be to the charge of possession with the intent to
       deliver contrary to 124.401(1)(d), of the Code, a Class D felony.
               I will order you committed to the custody of the director of
       the Department of Corrections for [a term] not to exceed five years.
       I will suspend that sentence and place you on probation to the
       Department of Correctional Services for two to five years.
               And your supervision may be by the Sixth Judicial District
       down in Benton County. I’ll impose a fine of $750 plus a 35 percent
       surcharge and suspend that. Your driving privileges will be
       suspended for 180 days. There will be a $125 law enforcement
       assessment and a $10 DARE assessment.

Kaine appeals.

II. Standard of Review.

       Where, as here, the defendant does not assert the imposed sentence is

outside the statutory limits, we review for an abuse of discretion.           State v.

Thomas, 547 N.W.2d 223, 225 (Iowa 1996). An abuse of discretion is found only

when the sentencing court exercises its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable. Id. We review both the




2
  Here, the court is referencing Kaine’s previous guilty plea for manufacturing of a
controlled substance (marijuana), in violation of Iowa Code section 124.401(1)(d).
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court’s stated reasons made at the sentencing hearing and its written sentencing

order. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).

      We review challenges to the legality of a sentence for corrections of errors

at law. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).

III. Discussion.

      A. Deferred Judgment.

      Kaine maintains the district court abused its discretion in not granting his

request for a deferred judgment. He argues the sentencing order does not reflect

factors or circumstances the district court relied on in denying his request for a

deferred judgment.

      We review both the court’s stated reasons made at the sentencing hearing

and its written sentencing order. See Lumadue, 622 N.W.2d at 304. During the

sentencing colloquy, the district court expressly considered Kaine’s criminal

history as well as his admission in the presentence investigation that he had

been selling marijuana as his primary source of income for several years. While

there are certainly more factors the court could have considered before denying

Kaine’s request, “the failure to acknowledge a particular sentencing circumstance

does not mean it was not considered.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.

App. 1995). Additionally, the court is not “required to specifically acknowledge

each claim of mitigation urged by a defendant.” Id.

      We find the district court did not abuse its discretion when rejecting

Kaine’s request for a deferred judgment.
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       B. DARE Surcharge.

       Kaine asserts, and the State agrees, the district court erred in assessing a

ten dollar DARE surcharge. Iowa Code section 911.2 provides, “[T]he district

court shall assess a drug abuse resistance education surcharged of ten dollars if

a violation arises out of a violation of an offense provided for in . . . chapter 124.”

However, “The surcharge shall not be assessed for any offense for which the

court defers the sentence or judgment or suspends the sentence.” Iowa Code

§ 911.2(2). Because the district court suspended Kaine’s sentence, the DARE

surcharge was not provided for by law, and the district court erred in assessing

the surcharge. We vacate this portion of Kaine’s sentence.

IV. Conclusion.

       Because we find the district court considered relevant factors and did not

abuse its discretion, we affirm the district court’s imposition of a suspended

sentence. We vacate the illegal part of the sentencing order imposing a ten

dollar DARE surcharge and remand for entry of a corrected sentencing order.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH

DIRECTIONS.
