                   IN THE COURT OF APPEALS OF IOWA

                                      No. 17-2107
                                 Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAMAN JULIAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor

(plea) and Mark R. Lawson (sentence), Judges.



      Defendant appeals his convictions for sponsoring a gathering where a

controlled   substance     was     used   and   two      counts   of   possession   of

methamphetamine. AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.

      Daman C. Julian, Mt. Pleasant, appellant pro se.

      Thomas J. Miller, Attorney General, and Katherine M. Krickbaum, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ. Tabor, J.,

takes no part.
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BOWER, Judge.

      Daman Julian appeals his convictions for sponsoring a gathering where a

controlled     substance   was   used   and   two     counts   of   possession   of

methamphetamine. We find the court did not abuse its discretion in sentencing

Julian because its decision was supported by the evidence. We affirm Julian’s

convictions.

      I.        Background Facts & Proceedings

      On February 3, 2017, Julian was arrested after a search warrant was

executed at his home. Julian was charged in FECR073508 with possession of a

controlled substance, second offense, in violation of Iowa Code section 124.401(5)

(2017), an aggravated misdemeanor, and sponsoring a gathering where a

controlled substance was unlawfully used, in violation of section 124.407, a class

“D” felony. He was released on bond prior to trial.

      On May 5, 2017, Julian was arrested and a small bag of methamphetamine

was found on his person. Julian was charged in AGCR074003 with possession of

methamphetamine, second offense, in violation of section 124.401(5). He was

again released on bond.

      On July 15, 2017, officers conducted a search warrant at Julian’s home and

found methamphetamine. Julian was charged in FECR074354 with possession of

methamphetamine, second offense, in violation of section 124.401(5). 1




1
    Julian was originally charged with possession of methamphetamine with intent to
deliver. Laboratory testing, however, showed only a small portion of the substances
discovered by officers was methamphetamine. The State then amended the trial
information to more accurately reflect the factual situation.
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       Julian entered into a plea agreement in which he agreed to plead guilty to

the charge of sponsoring a gathering where a controlled substance was used in

case FECR073508, possession of methamphetamine, second offense, in case

AGCR074003, and possession of methamphetamine, second offense, in case

FECR074354, and the State agreed to dismiss the other possession charge. The

district court accepted Julian’s guilty pleas at a hearing on October 5, 2017.

       Julian was released prior to sentencing to attend an intensive outpatient

substance-abuse treatment program. He was unsuccessfully discharged from the

program on November 28, 2017, due to lack of compliance and attendance.

       The sentencing hearing was held on November 30, 2017. The presentence

investigation report recommended incarceration, noting Julian’s long criminal

history and the failure of previous community-based correctional services to deter

his continued criminal activities.     The State requested consecutive prison

sentences. Julian requested intermediate sanctions which would permit him to

complete a substance-abuse treatment program.

       The sentencing court determined probation was not appropriate. Julian was

sentenced to a term of imprisonment not to exceed five years on the conviction for

sponsoring a gathering and two years on each of the convictions for possession of

methamphetamine. The sentences on the possession convictions were to run

consecutive to the sentence for sponsoring a gathering, but concurrent with each

other. The court denied Julian’s motion to reconsider his sentences. He now

appeals.
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       II.    Standard of Review

       If a sentence is within the statutory limits, we review a district court’s

sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,

552 (Iowa 2015). “Thus, our task on appeal is not to second guess the decision

made by the district court, but to determine if it was unreasonable or based on

untenable grounds.” Id. at 553. “In other words, a district court did not abuse its

discretion if the evidence supports the sentence.” Id.

       III.   Sentencing

       Julian claims the district court abused its discretion in sentencing him. He

states the court should have placed him on probation. In the alternative, he states

the court should not have made his sentences consecutive. He asks to have his

sentences vacated and the case remanded for resentencing.2

       The district court stated:

               The reasons for the court’s sentence as I indicated before you
       have a lengthy history of criminal violations, some violent but mostly
       substance abuse.        Your prior suspended sentence was not
       particularly successful, you haven’t demonstrated an ability to be
       successful on probation. You have demonstrated an ability to be
       somewhat successful on parole. So I think that bodes well for when
       you get out. I hope it does. I’ve also taken several other things into
       consideration. This sentence is mostly designed to be a specific
       deterrent to you to discontinue drug use. And that’s the message
       that I’m trying to send and that’s the message I’m also trying to send
       with consecutive sentencings of the aggravated misdemeanors to
       the felony. The reason for the consecutive sentences is your record
       but mostly to deter you from further violations. The Court also notes
       that you did—were using meth right up until the time the presentence
       investigation was prepared, that you did fail to complete your
       substance abuse treatment. I also noted your performance on
       pretrial release, and that incarceration was the recommendation of
       the presentence investigation.

2
   In a pro se brief, Julian gives additional reasons for requesting resentencing but does
not raise any additional issues on appeal.
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       Julian disputes the court’s statement he was using methamphetamine “right

up until the time the presentence investigation was prepared.” He states he last

used an illegal substance on July 15, 2017, and the presentence investigation

report was filed on November 20, 2017, more than four months later. While there

was not any evidence presented of positive drug tests after July 2017, Julian was

unsuccessfully discharged from a substance-abuse treatment program on

November 28, 2017, just a few days before the sentencing hearing “due to his lack

of compliance and attendance.” Julian had a negative drug test on November 1,

2017, but “[n]o further tests [were] completed since that date, since Mr. Julian only

showed one additional time in November.” We find the district court did not abuse

its discretion in questioning whether Julian was continuing to use controlled

substances.

       Julian also claims the district court did not consider all pertinent factors in

sentencing him.     He states, “Although the Court considered only appropriate

factors, it certainly did not consider all of the factors . . . .” He states the court did

not adequately consider his age, family situation, or work toward rehabilitation. He

states if he was placed on probation he could help his aging father and attend a

new substance-abuse treatment program. He points out he completed several

weeks of a substance-abuse treatment program before he was unsuccessfully

discharged.

       “The right of an individual judge to balance the relevant factors in

determining an appropriate sentence inheres in the discretionary standard.” State

v. Wright, 340 N.W.2d 590, 593 (Iowa 1983). A court’s “failure to acknowledge a
                                        6


particular sentencing circumstance does not necessarily mean it was not

considered.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). “Instead, we

review a sentence for an abuse of discretion based on the entire record, and look

to see if the reasons articulated by the trial court are sufficient to enable us to

determine if an abuse of discretion occurred.” Id.

      We conclude the district court did not abuse its discretion in sentencing

Julian. The court gave clear and adequate reasons for denying Julian’s request to

be placed on probation and for making his sentences on the possession

convictions consecutive to the sentence for sponsoring a gathering. When Julian

was on pretrial release prior to sentencing he kept using methamphetamine and

kept committing criminal offenses. The court did not abuse its discretion because

its decision was supported by the evidence. See Seats, 865 N.W.2d at 553.

      We affirm Julian’s convictions.

      AFFIRMED.
