                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0594
                           Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRYAN M. WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      A defendant challenges his sentence for theft. AFFIRMED.



      Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Mullins, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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BLANE, Senior Judge.

       Bryan Williams stole his neighbor’s purse in December 2013. The value

of the property exceeded one thousand dollars. Williams was charged with theft

in the second degree, a class “D” felony. See Iowa Code § 714.2(2) (2013).

       Williams negotiated a plea agreement with the State. Pursuant to the plea

agreement, if Williams paid restitution in full and obtained a substance-abuse

evaluation by the time of sentencing, the State would reduce the charge to theft

in the third degree. See id. § 714.2(3).

       The parties appeared for sentencing on March 10, 2016. There, Williams

requested a one-week continuance to secure payment from an employer for a

job he had done and complete the substance-abuse evaluation.          The State

resisted the continuance, but the court ultimately continued the sentencing until

March 18. On March 18, Williams appeared with $400 toward the restitution

requirement but no substance-abuse evaluation.         He again asked for a

continuance. The sentencing hearing was continued until April 1. On April 1,

Williams appeared, having partially completed the substance-abuse evaluation

but failing to provide a urine sample and making no additional progress toward

restitution. Again he moved for a continuance. The court recessed for a period

of time to give Williams more time to see if he could fully comply, but when no

further progress was made, the court denied his motion and sentenced Williams

to a term not to exceed five years in prison.

       Williams appeals. He argues the district court abused its discretion in

denying his motion to continue sentencing and in sentencing him to prison for a

period not to exceed five years. See State v. Barnes, 791 N.W.2d 817, 827
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(Iowa 2010) (stating sentencing orders are reviewed for abuse of discretion);

State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (stating appellate review of

denial of motion to continue is for abuse of discretion).

   A. Continuance

       Ordinarily, the decision whether to grant or deny a motion to continue is

within the discretion of a trial court. See Artzer, 609 N.W.2d at 530. We may

reverse a denial of a continuance, however, if “substantial justice will be more

nearly obtained” with the continuance. State v. Ruesga, 619 N.W.2d 377, 384

(Iowa Ct. App. 2000).       This requires the moving party to show “good and

compelling cause.” State v. Hardin, 569 N.W.2d 517, 521 (Iowa Ct. App. 1997).

       Williams argues good cause exists because the two continuances he was

granted were for but a short time, he had done work to secure funds to pay his

restitution, and he had done everything short of provide a urine sample to get his

substance-abuse evaluation.      This falls short of good cause.          It is likely the

continuances were short because the requirements were easy. That Williams

was unable or unwilling to do what was necessary demonstrates why the district

court ultimately denied his final motion to continue. Williams had substantial

opportunities to comply with the terms of the plea agreement. He did not do so

despite two continuances afforded him.        The district court did not abuse its

discretion in denying his third motion to continue.

   B. Sentence

       Every   sentencing     decision   must    fit   the   particular    person    and

circumstances involved in a case. State v. Hildebrand, 280 N.W.2d 393, 396

(Iowa 1979). When a sentencing court has discretion, “it must exercise that
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discretion.” State v. Johnson, 630 N.W.2d 583, 590 (Iowa 2001). If a court fails

to exercise its discretion, the sentence must be vacated and the case remanded

for resentencing. State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003).

       Williams argues the court failed to exercise its discretion because he did

not threaten the victim of his theft and did not place her in any fear, the plea

agreement contemplated a reduction in his charge, and the presentence

investigation report (PSI) prepared by the Iowa Department of Correctional

Services recommended he be sentenced to probation. The court stated on the

record it had reviewed the PSI that contained the department’s recommendation.

The court also stated it was considering the seriousness of the crime, the effect

of the crime on the community, Williams’s willingness to accept change and

treatment, the community resources available to assist Williams in the

rehabilitative process, Williams’s lengthy criminal history, his substance-abuse

history and unsuccessful attempts at substance-abuse treatment, his history of

failing to comply with probation, and his limited work history. The district court’s

lengthy and thorough colloquy shows a considered review of options. It is clear

Williams’s criminal history and previous failed attempts at rehabilitation weighed

heavily in the district court’s determination. Those are proper considerations for

a district court to make in imposing sentence. See Iowa Code §§ 901.5, 907.5;

State v. Bentley, 757 N.W.2d 257, 266 (Iowa 2008).          Nothing in the record

suggests the court considered improper factors or abused its discretion.

       AFFIRMED.
