                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0911
                              Filed March 26, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD JOSEPH SICKELS,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Cerro Gordo County, Karen Salic,

District Associate Judge.



       Defendant appeals his sentence for second degree theft. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Martha Lucey, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney

General, Carlyle D. Dalen, County Attorney, and Andrew Olson, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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TABOR, J.

       Chad Sickels appeals his sentence following his plea of guilty to second-

degree theft for writing bad checks.        He argues the district court used an

impermissible factor, his poverty, in determining a prison sentence was more

appropriate than probation. He also argues the district court concentrated too

much on his criminal history and overlooked his efforts to reform in reaching its

sentencing decision.      We conclude the district court did not consider an

impermissible factor and did not abuse its discretion by concentrating on

Sickels’s criminal history.

I.     Background Facts and Proceedings

       On June 20, 2012, Chad Sickels wrote two checks totaling $1074.18 to

Mills Fleet Farm in Mason City. The bank returned the checks for insufficient

funds. Fleet Farm sent a letter by certified mail to Sickels demanding payment

within ten days of receiving the letter or the business would refer the matter for

prosecution.   During phone calls between the parties, Sickels said he would

repay but needed time to come up with the money. When Sickels failed to make

the payments, Fleet Farm followed up with a phone call to Sickels, but he hung

up. Fleet Farm left a message informing Sickels he had until September 26,

2012, to repay the amount owed. When no payment arrived, Fleet Farm notified

law enforcement.

       By his own admission, Sickels knew he did not have money in his account

to pay Fleet Farm, and he returned the merchandise “to get cash to pay bills to

keep my apartment, keep food, you know, lights things like that on.”
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         On December 20, 2012, the State charged Sickels with second degree

theft, in violation of Iowa Code section 714.1(6), 714.2(2), and 714.3 (2011). On

April 8, 2013, Sickels entered a guilty plea as part of an agreement with the

State.    In exchange for his guilty plea, the State agreed to make whatever

sentencing recommendation appeared in the presentence investigation (PSI)

report, and the defense was free to argue for a different sentence. At the June 3,

2013 sentencing hearing, Sickels argued for probation. The State sought an

indeterminate five-year prison term, consistent with the PSI recommendation.

The court sentenced Sickels to an indeterminate sentence not to exceed five

years, a $750 fine, a thirty-five percent surcharge, and a law enforcement

surcharge of $125. Sickels now appeals.

II.      Standard of Review

         We review sentences for correction of errors at law, and “[w]e will not

reverse the decision of the district court absent an abuse of discretion or some

defect in the sentencing procedure.” State v. Formaro, 638 N.W.2d 720, 724

(Iowa 2002). We indulge a strong presumption in favor of a sentencing decision

if it is within statutory limits. Id.

         Abuse of discretion occurs when a court uses clearly untenable or

unreasonable grounds or reasons as part of its sentencing analysis. State v.

Laffey, 600 N.W.2d 57, 62 (Iowa 1999).       Our “focus is whether an improper

sentencing factor crept into the proceedings.” State v. Thomas, 520 N.W.2d 311,

314 (Iowa Ct. App. 1994). If a court considers an improper factor, we may not

speculate about the influence of that factor in the sentencing determination.
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State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999).          If we find a court has

considered an improper factor, we remand for resentencing. Id.

III.   Analysis

       A.     District Court’s Reasons for Imposing a Prison Sentence

       After hearing testimony1 and arguments from both parties, the court

offered the following justification for its sentencing decision: “Mr. Sickels, the law

requires that I take a number of factors into consideration when deciding what an

appropriate sentence should be for you. Those include your rehabilitation, as

well as the protection of the community, and deterring others from committing

similar crimes.”

       The court continued by discussing Sickels’s criminal history, including his

previous probation experiences.

              And I’m sure that you’ve heard those words from judges
       several times over the years because your criminal history shows
       you're committing crimes every year or so. And there’s a point at
       which it becomes very difficult to know what it’s going to take for
       you to be rehabilitated. Certainly over the past fifteen years you’ve
       made several choices to violate the law. And I understand many of
       the things Ms. Meints touched on, that, you know, perhaps you’ve
       had a hard childhood and that you have mental health issues; but
       you're not the only person who’s ever had that and not every
       person turns to this type of criminal activity as a result of that.
              You’ve had numerous felony charges, burglaries in 1998 out
       of Grundy County and Hardin. You went to prison on that after your
       probation was revoked. You have forgery convictions, burglary,
       another forgery, and that’s just in 2002, went to prison for that and
       were paroled. You had a lottery ticket fraud and burglary third,
       went to the violator’s program on that apparently. Story County you
       had another lottery ticket fraud in 2006; you were given probation
       on that, your probation was revoked and you were sent to prison
       then. [In] Hardin County you had a burglary third in 2006, went to


1
  The defense called three witnesses: Jessica Kalvig, Shirley Meints, and Sickels
himself.
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      the violator program on that, and also a second count of burglary
      third it looks like. [In] 2012 you had a harassment third degree
      which, of course, also occurred while you were on parole along with
      this instant offense.
              Your supervision history is terrible. There’s not one single
      one that’s been successful. Th[ese] have all been revoked. And it
      seems that it would be foolhardy for us to try probation again
      because you haven’t taken advantage of it in the past.

      The court then discussed the improvements in his life since the crime was

committed and its remaining concerns about his continued criminal acts.

              You do have a lot of people that have supported you and I
      trust that they will continue to do that even when you get out of
      prison. But I think in some ways that they aren’t helping you. I
      think both Ms. Meints and Ms. Kalvig are very tender hearted
      people who have given you every opportunity and think that that’s
      going to be helpful to you, but you’re still at a point where you’ve
      pawned everything. You know, Ms. Meints was kind enough to pay
      this check off for you. You know, people are giving you buildings
      and still here we are with you committing crimes.

      Finally, the court addressed Sickels’s failure to take advantage of the

mental health services that have been offered to him.

             I do understand that you have some mental health issues
      that need to be addressed, but certainly you’ve been given the
      opportunity to address that throughout the last fifteen years even
      back as recently as October you were not willing to participate in it.
      And certainly in any event it doesn’t excuse the criminal behavior
      you’re engaging in.
             If it is true that this—you’re really at a point where you want
      to make significant changes, then you will have an opportunity to do
      that while you’re in prison. But at this point the community just
      needs protection from you. And if you’re at a point where you’re
      down to very few resources, I think that’s even riskier.

      B.     Sickels’s Challenges on Appeal

      Sickels argues the district court abused its discretion by considering his

“very few resources” as a factor supporting incarceration. He also argues the
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court only looked at his criminal history, failing to consider the steps he has taken

toward rehabilitation.

       We examine Sickels’s arguments in light of the statutory direction given to

sentencing courts. “After receiving and examining all pertinent information,” the

district court should determine which sentence “will provide maximum opportunity

for the rehabilitation of the defendant, and for the protection of the community

from further offenses by the defendant and others.” Iowa Code § 901.5. In

addition, before suspending sentence, the court should consider the defendant’s

prior record of convictions or deferred judgments, employment circumstances,

family situation, mental health, and substance abuse history. Iowa Code § 907.5.

       A district court is required to give its reason on the record for the selection

of a particular sentence.     Iowa R. Crim. P. 2.23(3)(d).       When choosing a

sentence, courts must consider all pertinent matters, including the nature of the

offense;   the   attending   circumstances; defendant’s age,         character, and

propensities; and chances for reform. Formaro, 638 N.W.2d at 725.

            1.  The sentencing court’s mention of Sickels’s admitted
motivation for committing theft was not evidence of an improper
consideration.

       Sickels contends he is entitled to a new sentencing hearing because the

district court improperly considered his poverty in rejecting his request for

probation. He zeroes in on the following sentence in the court’s explanation:

“And if you’re at a point where you’re down to very few resources, I think that’s

even riskier.”   Sickels compares his situation to the defendants in State v.
                                          7



Snyder, 203 N.W.2d 280 (Iowa 1972) and State v. Dunn, No.12-0417, 2012 WL

6193868 (Iowa Ct. App. Dec. 12, 2012).

       We find Snyder and Dunn distinguishable. In Snyder, our supreme court

decided the imprisonment of a defendant, who had been convicted of operating

while intoxicated, solely because he could not immediately pay a fine by reason

of his indigency deprived him of his right to equal protection. 203 N.W.2d at 287

(noting “[d]istinctions in the administration of criminal justice between rich and

poor are generally not likely to bear up under constitutional scrutiny”). In Dunn,

our court held that a defendant convicted of drug possession could not be denied

a deferred judgment based on his receipt of public assistance.             2012 WL

6193868, at *2–3. In neither Snyder nor Dunn did the defendants broach the

issue of their poverty as an explanation for their criminal acts.

       By contrast, in this case Sickels placed his economic hardships front and

center. In his version of the offense included in the PSI, Sickels detailed his

health issues which prevent him from working, explaining:

       So money really got tight. I was desperate for food and to pay bills.
       I made a bad decision to write checks for things and take them
       back for cash to pay bills. . . . I am sorry. I have since found
       resources to help in times of need and if I ever get in that spot
       again I will lean on them instead of doing things like this.

       At the sentencing hearing, Sickels testified that it was not an excuse but

that he wrote the bad checks because he “just needed to survive . . . needed to

eat . . . needed to pay bills.” In asking for a suspended sentence, his attorney

said Sickels was “making ends meet” since the time of his theft offense.
                                         8



      Against this backdrop, we do not believe the sentencing court could be

prohibited from considering Sickels’s available resources as a factor in its

sentencing determination. Sickels presented his financial straits at the time of

the offense as a mitigating factor at sentencing. The defense also presented

testimony and argument that Sickels had stabilized his economic condition,

suggesting that he would be less likely to reoffend.       The sentencing court’s

statements merely reflected its skepticism regarding those arguments.

      Even if the sentencing court should have tailored its comments more

precisely to respond to Sickels’s arguments, we are “aware that the sentencing

process can be especially demanding and requires trial judges to detail, usually

extemporaneously, the specific reasons for imposing the sentence.”            See

Thomas, 520 N.W.2d at 313–14.            The district court leveled no general

condemnation of Sickels based on his economic situation.             Reviewing its

comments as a whole, the sentencing court was only acknowledging what

Sickels admitted—his lack of resources motivated him to write bad checks and

then return the items for cash so he could pay his bills. The court was entitled to

entertain the possibility that Sickels would engage in that behavior again.

            2.    The district court did not abuse its discretion by giving
primary consideration to Sickels’s criminal history.

      Sickels next argues the district court focused too much on his criminal

history and failed to consider the improvements in his life he had made since his

arrest. This complaint is contradicted by the record. The court listened to the

witnesses who testified on Sickels’s behalf and referenced them in its reasoning.

The court also recognized Sickels had been working recently and that restitution
                                        9



had been paid on his behalf. The court was critical of Sickels for not addressing

his mental health issues and referred to information found in the PSI about how

Sickels was unable to successfully complete probation.

      While a sentencing court must consider all the circumstances of a

particular case, it need not specifically acknowledge each claim of mitigation

urged by a defendant. State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995).

This sentencing court did devote much of its explanation to Sickels’s long

criminal record and “terrible” history on supervision, but it was reasonable to do

so given the choice between probation and incarceration.         It is within the

discretion of the court to balance the factors to come to an appropriate sentence.

See State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983). Sickels’s criminal history

and struggle to behave while on probation supports the court’s decision to

impose incarceration. We find no abuse of discretion on this record.

      AFFIRMED.
