                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1763
                              Filed June 20, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL RICHARD BROWN, JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan,

District Associate Judge.



      Michael Brown appeals the sentences imposed following his guilty pleas to

two counts of driving while barred. AFFIRMED.




      Nathan A. Olson of Branstad Law, P.L.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       Michael Brown was charged with two counts of driving while barred. A plea

agreement was reached under which Brown would enter guilty pleas to both

charges in return for the State’s recommendation that he be sentenced to 135

days1 of incarceration on each charge, to be served concurrently. After being

advised of the rights he was giving up by entering a guilty plea and acknowledging

the court was not required to abide by the terms of the plea agreement, Brown pled

guilty and requested immediate sentencing.           The court inquired into Brown’s

criminal history, upon which the State apprised the court of Brown’s prior

convictions2 and advised Brown was currently on parole for three 2016 convictions,

having had his probation for those convictions revoked for violating the terms of

his probation three days after being placed thereon. Brown admitted to all of the

convictions and requested he be sentenced to “185 days in jail,” as it would give

him “time to really think about what [he is] doing.”

       The court stated:

              . . . I find that based on your criminal history, you are a danger
       to society.
              You continue to drive. You’re on parole. And you continue to
       drive.
              You have not taken any steps to change your criminal
       behavior.
              ....

1
  The record indicates this would have been the term of incarceration remaining after
Brown’s receipt of credit for time served.
2
  The prior convictions included: first-degree theft and second-degree burglary in 1981;
disorderly conduct and possession of cocaine with intent to deliver in 1989; possession of
a controlled substance in 1993; possession of a controlled substance in 1996; two counts
of driving while barred in 2001; disorderly conduct and third-degree harassment in 2002;
domestic-abuse assault in 2003; aggravated eluding and first-degree harassment in 2004;
driving while barred in 2006; a felony controlled-substance violation in 2008; eluding,
driving while barred, and operating while intoxicated in 2012; and driving while barred and
two counts of operating while intoxicated in 2016.
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               . . . [Y]ou’re on parole for the same charge you’ve now pled
       guilty to.
               I don’t know what you don’t understand about the fact that you
       can’t drive—
               ....
               But this is ridiculous. This is your seventh driving while
       barred, all totaled. And your other criminal history is terrible too.
               ....
               So for those reasons, it’s going to be the order of the Court
       you should pay a fine of $625 on each one. Your fine is suspended
       due to your incarceration.
               ....
               You’re incarcerated for a period of two years on each charge.
               ....
               These sentences will run consecutive to each other for a total
       of four years.

Brown vehemently objected to the sentence imposed and the court’s deviation

from the terms of the plea agreement.

       In its subsequent sentencing order, the court noted its consideration of the

nature and circumstances of the crime, protection of the public from further

offenses, Brown’s criminal history and propensity for further criminal acts, and the

maximum opportunity for rehabilitation. The court also expressly noted it “rejected

the plea agreement” because Brown “is currently on parole for” driving while

barred, “has an extensive criminal history,” and “already owes the State of Iowa

over $23,000 in delinquent financial obligations on these matters.” The court also

noted it denied probation “based on the sentencing considerations set out above.”

       Brown appeals, contending the district court unconstitutionally considered

his delinquent financial obligations in sentencing and abused its discretion in

refusing to consider all potential sentencing options. We review challenges to a

sentence on constitutional grounds de novo. State v. Roby, 897 N.W.2d 127, 137

(Iowa 2017). Challenges to a sentence that falls within the statutory limits are
                                          4

reviewed for an abuse of discretion. State v. Thacker, 862 N.W.2d 402, 405 (Iowa

2015).

         Brown cites State v. Pinckney as support for his constitutional challenge.

See 306 N.W.2d 726, 731 (Iowa 1981). In that case, the supreme court found

unconstitutional a district court order requiring a defendant to serve one day in jail

for every ten dollars he failed to pay of the $5000 fine imposed. Id. The court

found this to be an equal-protection violation because it would “create two classes

of convicted defendants indistinguishable from each other except that one is able

to pay the fine and can avoid imprisonment, and the second cannot satisfy the fine

and therefore cannot escape imprisonment.” See id. (quoting State v. Snyder, 203

N.W.2d 280, 287 (Iowa 1972)).

         This case is obviously distinguishable from Pinckney. Pinckney’s sentence

was unconstitutional because he was subjected to potential imprisonment solely

because of his indigency. See id. Here, Brown was sentenced to a term of

incarceration for numerous reasons independent of his financial status—the

circumstances of the crime, community protection, Brown’s criminal history and

propensity for further criminal acts, the maximum opportunity for rehabilitation, and

Brown’s express request for a jail sentence so he could have “time to really think

about what [he is] doing.” Cf. State v. Kellogg, 534 N.W.2d 431, 435 (Iowa 1995)

(distinguishing Pinckney and noting the fact that a defendant “is indigent does not

preclude the court from considering other factors” and such other factors may be

independent of the defendant’s financial status). Further, the record reveals the

court viewed Brown’s failure to pay his obligations as further evidence that Brown

has no respect for the law or legal system in general and has no desire to change
                                           5

his ways. This case is not like Pinckney, where the defendant was ordered to

serve jail time if he could not pay the fine imposed. See 306 N.W.2d at 731. Here,

the court ordered two two-year terms of incarceration, imposed fines, and

suspended the fines.      Upon our de novo review, we conclude the sentence

imposed is not in violation of equal protection.

       Next, Brown contends the district court abused its discretion in sentencing.

Brown agrees his sentence was within statutory limits. As such, the sentence “is

cloaked with a strong presumption in its favor, and will only be overturned for an

abuse of discretion or the consideration of inappropriate matters.”            State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “An abuse of discretion will not be

found unless we are able to discern that the decision was exercised on grounds or

for reasons that were clearly untenable or unreasonable.” Id.

       Brown specifically contends the district court failed to consider all

sentencing options, and only considered those options which involved

incarceration.   Although the district court rejected the plea agreement and

sentenced Brown to two years of incarceration on each count, the plea agreement

expressly called for a term of incarceration—considering anything less than jail

time was not a requirement on the part of the district court. See State v. Snyder,

336 N.W.2d 728, 729 (Iowa 1983) (“[T]he plea agreement contemplated that the

defendant would be imprisoned for the offense. The court approved the plea

agreement and incorporated it in the sentence. The sentence was therefore not

the product of the exercise of trial court discretion but of the process of giving effect

to the parties’ agreement.”). Brown cannot be heard on appeal to complain about

the court declining to consider anything less than a term of imprisonment. See,
                                          6

e.g., Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991) (noting a litigant “cannot

deliberately act so as to invite error and then object because the court has

accepted the invitation”); Odegard v. Gregerson, 12 N.W.2d 559, 562 (Iowa 1944)

(same); State v. Campbell, No. 16-0550, 2017 WL 2464070, at *9 (Iowa Ct. App.

June 7, 2017) (same). In any event, we conclude the court’s rejection of the plea

agreement and the ultimate sentence imposed was wholly appropriate and not the

product of an abuse of discretion on the part of the district court.

       Finding no constitutional infirmity or abuse of discretion in relation to

Brown’s sentence, we affirm.

       AFFIRMED.
