                   IN THE COURT OF APPEALS OF IOWA

                                      No. 19-0316
                                  Filed April 15, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARIEN DEMARQIS SIMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Kevin A. Parker, District

Associate Judge.



      Defendant appeals the district court decision revoking his deferred

judgment on a charge of forgery and sentencing him. AFFIRMED.



      Thomas Hurd of Greenberg & Hurd, LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

       Darien Sims appeals the district court decision revoking his deferred

judgment on a charge of forgery and imposing sentence. We conclude the district

court did not abuse its discretion in revoking Sims’s deferred judgment, as Sims

admitted he violated terms of his probation. We also find the district court did not

improperly consider an unproven or unprosecuted offense when sentencing Sims.

Accordingly, we affirm the decision of the district court.

       I.     Background Facts & Proceedings

       Sims was charged with forgery and identity theft. He entered into a plea

agreement in which he agreed to plead guilty to forgery, in violation of Iowa Code

section 715A.2(2)(a) (2017), a class “D” felony.        Sims was given a deferred

judgment and placed on probation for two years. The charge of identity theft was

dismissed.

       On July 16, 2018, Sims’s probation officer filed a report of violation, alleging

Sims had diluted urine samples in April and May and tested positive for marijuana

in July. Sims stipulated that he violated the terms of his probation. On August 6,

the court found him to be in contempt but stated he could purge the contempt by

obtaining and maintaining full-time employment, obtaining a new substance abuse

evaluation and attending treatment, and not committing any further violations. On

November 6, an order was entered stating Sims had purged the contempt.

       On January 16, 2019, Sims’s probation officer filed a new report of violation,

which asserted Sims (1) admitted using marijuana in August 2018, (2) tested

positive for marijuana in September and December 2018, and (3) was fired from

his employment in January 2019 and lied to the probation officer about it.
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       At the probation revocation hearing, the court discussed Sims’s admissions

about violating his probation:

              The Court: Off the record, we’ve had some discussion. Mr.
       Sims was admitting that he did violate the terms of his probation
       given to him by the Court on February 20 of 2018 by not maintaining
       employment, by not being truthful with his probation officer, by having
       positive tests for THC. Is that correct, [defense counsel]?
              [Defense Counsel]: That is correct, yes, Your Honor.

Later, defense counsel stated, “[M]y client has stipulated to the violations,

stipulated generally to the disposition of this probation violation matter.”

       There was also the following discussion about Sims’s marijuana use:

             The Court: And then also you tested for THC.
             The Defendant: Yes, I admitted to them uses and I
       completed—I went to treatment, I completed treatment, and I had
       dropped clean, I thought. So I don’t get the problem, I really don’t.
             The Court: Well, your last, your analysis—
             The Defendant: The last time—
             The Court: —was positive 12/6.
             The Defendant: No, my last one that was negative was, like,
       January 4.

       The district court order stated, “The Defendant STIPULATES to have

violated the terms of his probation by as stated in [the report of violation] filed

1/16/19.” (Emphasis in original). The court revoked Sims’s deferred judgment and

found him guilty of forgery. Sims was sentenced to a term of imprisonment not to

exceed five years. The sentence was suspended, and Sims was placed on

probation for two years. Sims was required to attend a violators’ program at the

Fort Des Moines Correctional Facility. Sims now appeals the revocation of his

deferred judgment and sentence.
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       II.     Revocation of Deferred Judgment

       Sims states the report of violation filed on January 16, 2019, contained three

factors: (1) an admission of marijuana use in August 2018; (2) positive tests for

marijuana in September and December 2018; and (3) failure to maintain

employment and lying about it. He claims he only admitted to the second and third

factors. Sims contends the district court improperly relied on the first factor—an

admission of marijuana use—as a reason for revoking his deferred judgment.

       “We will overturn a revocation of probation only if there has been an abuse

of discretion.” State v. Covel, 925 N.W.2d 183, 187 (Iowa 2019). “An abuse of

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

that are clearly untenable or unreasonable.” Id. We may find grounds untenable

if they are based on an erroneous application of the law. Id.

       In determining whether probation should be revoked, the court considers

(1) “whether the person has acted in violation of one or more conditions of his or

her probation,” and (2) “whether the person should be committed to prison or

whether the court should take other steps to protect society and improve chances

of rehabilitation.” Id.

       Sims does not dispute that he admitted to at least two probation violations—

having positive drug tests and failing to maintain employment, while lying about his

employment. Based on his admissions, Sims acted in violation of one or more

conditions of his probation. Even if Sims did not admit to a third violation, using

marijuana, the revocation of his probation may be supported by the two factors he

admitted to in the probation revocation proceedings.
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       The district court could reasonably conclude Sims’s probation should be

revoked because Sims’s conduct did not improve after his first probation

revocation proceeding. In the first report of violation, Sims’s probation officer

reported he had diluted urine samples in April and May and tested positive for

marijuana in July. Although Sims was found in contempt and then purged the

contempt, the same conduct continued. As was reported by the probation officer

in the second report of violation, Sims had positive tests for marijuana in

September and December. We conclude the district court did not abuse its

discretion in revoking Sims’s deferred judgment.

       III.   Sentencing

       Sims alleges the district court improperly considered the unprosecuted and

unproven violation of using marijuana when sentencing him. He denies admitting

to using marijuana in August 2018 at the probation revocation hearing. Because

he argues he did not stipulate to all of the violations in the report, he asserts the

court wrongly stated in the written probation order that he stipulated to violating the

terms of his probation as set out in the report of violation filed on January 16, 2019.

       “We review sentencing decisions for an abuse of discretion when the

sentence is within the statutory limits.” State v. Gordon, 921 N.W.2d 19, 24 (Iowa

2018). There is an abuse of discretion when “the district court exercises its

discretion on grounds or for reasons that were clearly untenable or unreasonable.”

State v. Thompson, 856 N.W.2d 915, 918 (Iowa 2014). If the evidence supports

the sentence, the district court did not abuse its discretion. Gordon, 921 N.W.2d

at 24–25.
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       “A court may not consider an unproven or unprosecuted offense when

sentencing a defendant unless (1) the facts before the court show the accused

committed the offense, or (2) the defendant admits it.” Id. at 25. At the revocation

hearing, the defense attorney stated, “[M]y client has stipulated to the violations,

stipulated generally to the disposition of this probation violation matter.” Also,

when the court stated Sims tested positive for THC, Sims stated, “Yes, I admitted

to them uses and I completed—I went to treatment, I completed treatment, and I

had dropped clean, I thought.” By his statement, Sims admitted to marijuana use

in the past.

       In his reply brief, Sims contends his statement at the hearing could not refer

to using marijuana in August 2018. Sims claims his statement at the probation

revocation hearing admitting to marijuana use referred to an earlier time, prior to

when he attended treatment. The report of violation states, “[T]he Defendant self-

admitted to using marijuana before his court hearing on 8/6/18.” The probation

order filed on August 6 required Sims to obtain a new substance abuse evaluation

within three days and immediately enter into treatment. We infer from this record

that the marijuana use before the court hearing on August 6 occurred prior to the

time Sims attended treatment. For this reason, Sims’s admission at the probation

revocation hearing that he used marijuana before he went to treatment can be

taken as an admission of the allegation of marijuana use in the report of violation.

       Sims admitted to using marijuana and we conclude the district court did not

improperly consider an unproven or unprosecuted offense when sentencing him.

We conclude the court did not abuse its discretion by sentencing him to a term of
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imprisonment not to exceed five years, suspending the sentence, and placing Sims

on probation for two years. We affirm the decision of the district court.

       AFFIRMED.
