                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1597
                             Filed February 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

COURTNEY ALLEN KELLUM,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Lee (South) County, Michael J.

Schilling, Judge.



       A defendant appeals his prison sentence. AFFIRMED.



       Jeffrey L. Powell of Powell & McCullough, PLC, Coralville, for appellant.

       Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.



       Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
                                           2


TABOR, Judge.

       Courtney Kellum appeals the prison sentence imposed following his guilty

pleas to delivery of methamphetamine and willful injury causing bodily injury. He

highlights the State’s description of him as a “junior varsity offender” in contending

the district court should have granted probation. After assessing the record, we

find the district court properly exercised its discretion.1

       This appeal involves two consolidated cases.           In the first prosecution,

Kellum pleaded guilty to willful injury causing bodily injury, a class “D” felony, in

violation of Iowa Code section 708.4(2) (2018). Kellum admitted stabbing the new

boyfriend of the mother of his child. In the second case, Kellum pleaded guilty to

delivery of methamphetamine, a class “C” felony, in violation of Iowa Code

section 124.401(1)(c)(6). He admitted selling less than five grams of the drug to a

confidential informant.2

       The district court considered both convictions at an August 2018 sentencing

hearing. In preparation for that hearing, the presentence investigation report (PSI)



1 We review Kellum’s sentence for correction of legal error. See State v. Formaro,
638 N.W.2d 720, 724 (Iowa 2002). We will not reverse unless we find an abuse
of discretion or a defect in the sentencing procedure. Id. Because Kellum’s prison
sentence was within statutory limits, we presume the district court properly
exercised its discretion. See id. A district court abuses its discretion when it
chooses a sentence on untenable grounds. State v. Hill, 878 N.W.2d 269, 272
(Iowa 2016). Grounds are untenable when they are “not supported by substantial
evidence” or are “based on an erroneous application of the law.” Id. (quoting State
v. Putman, 848 N.W.2d 1, 8 (Iowa 2014)).
2 The Iowa legislature amended Iowa Code sections 814.6 and 814.7, effective

July 1, 2019, limiting direct appeals from guilty pleas and eliminating direct-appeal
ineffective-assistance-of-counsel claims. See 2019 Iowa Acts ch. 140, §§ 28, 31
(codified at Iowa Code §§ 814.6–.7). The amendments “apply only prospectively
and do not apply to cases pending on July 1, 2019,” so the guilty-plea limitations
do not apply in this case. State v. Macke , 933 N.W.2d 226, 235 (Iowa 2019).
                                           3


recommended a suspended sentence and placing Kellum at a residential

treatment facility. While noting the PSI included “six and half pages worth of adult

misdemeanor offenses,” the prosecutor agreed with the recommendation for a

suspended sentence.

       He’s been a junior varsity offender up to this point in time.
       Corrections thinks that they can help him. So if they think that, then
       I’m going to go along with their recommendation.             I would
       recommend that he serve two concurrent terms as the result of these
       cases and that he be given a chance to go through the residential
       facility program on a suspended sentence. To me, his record
       indicates immaturity. And the case that I was involved in—not the
       drug case but the other case—although serious, really kind of a silly
       factual scenario, and I would contribute that to immaturity.

       The district court chimed in: “Well, he’s thirty-four years old; so it’s kind of

old to be immature.” The prosecutor responded he “didn’t realize [Kellum] was

that old.”

       Defense counsel then lobbied for a suspended sentence but asked the court

“to forego the imposition of the residential correctional facility as a condition of his

probation.” The defense acknowledged Kellum’s lengthy history of misdemeanor

offenses and his “poor choices” regarding controlled substances. But the defense

also discussed Kellum’s job prospects and his desire to “be a better role model”

for his children than he has been in the past.

       After considering the PSI and the parties’ positions, the district court

rejected the joint recommendation for probation. In doing so, the court emphasized

Kellum’s violent past, asserting “in my opinion, you constitute a danger to the

community.” Although recognizing they were all misdemeanors, the court listed

Kellum’s prior offenses.     “By my calculation, six thefts; four assaults; three

interference with official acts; ten alcohol-related offenses; and one controlled
                                         4


substance offense, not including the two offenses you’re here for today.” Given

that history, the district court decided a prison sentence would best protect the

community.

      The court summarized its sentencing rationale:

      In my judgment it’s not likely that you’re going to be successful in
      community-based corrections. When I read the presentence
      investigation, (A) You have virtually no employment history. (B) You
      deny you have a problem with alcohol abuse in spite of the fact that
      you’ve had ten alcohol-related offenses in your life. You denied
      having a controlled substance problem in spite of the fact that you
      were convicted of delivery of a controlled substance and have, at
      least, one prior controlled substance violation.

      The court then imposed concurrent indeterminate terms of five years and

ten years.

      On appeal, Kellum insists the district court was “unreasonable in ignoring

the recommendations of the Department of Corrections and the prosecutor.” We

disagree for two reasons. First, a sentencing court does not abuse its discretion

by refusing to grant probation even if recommended by the PSI and the parties.

See State v. Taylor, 490 N.W.2d 536, 539 (Iowa 1992); State v. Beyer, 258 N.W.2d

353, 359 (Iowa 1977). Second, the district court decided on incarceration after

considering Kellum’s age, criminal history, employment circumstances, family

circumstances, the nature of the offenses, and the information contained in the

PSI. See Iowa Code § 907.5(1) (setting forth relevant sentencing factors). The

court weighed those factors along with the goal of protecting the community from

further offenses. See id. On this record, Kellum fails to overcome the presumption

the sentencing court properly exercised its discretion.

      AFFIRMED.
