                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1934
                            Filed November 12, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDREAN AYERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Robert E. Sosalla,

Judge.



      Edrean Ayers appeals the sentence imposed following his guilty plea to

burglary in the second degree, willful injury causing bodily injury, and domestic

abuse assault causing bodily injury. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

       Edrean Ayers appeals the sentence imposed following his guilty plea to

burglary in the second degree, willful injury causing bodily injury, and domestic

abuse assault causing bodily injury. Ayers contends the district court abused its

discretion in sentencing him to prison after he exercised his right to waive

allocution.    For the following reasons, we affirm the judgment and sentence

entered following Ayers’s guilty plea.

       In 2014, Ayers pled guilty to burglary in the second degree, willful injury

causing bodily injury, and domestic abuse assault causing bodily injury. The

charges were precipitated by an incident in which Ayers and four other men

broke into the apartment rented by Chazman Sykora, the mother of Ayers’s four

children. Once inside, Ayers and his cohorts attacked Wade Burrell, kicking him

and striking him with various objects, including glass bottles and a vacuum

cleaner.

       At the sentencing hearing, the State told the court it had agreed pursuant

to the plea agreement “to make no adverse recommendation regarding

sentencing.”     Defense counsel argued Ayers was a “good candidate for a

suspended sentence and that he could be successful on probation” because he

had not previously been convicted of a felony; he had been employed full-time

since his release from jail; he had no violations of his conditions of release; and

had only been charged with not having a valid driver’s license since he had been

out of custody. Defense counsel further stated Ayers would be able to help

support his family and pay restitution if he was on probation.

       The court thereafter engaged in the following colloquy with Ayers:
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        COURT: Mr. Ayers, anything you would have to say before I
pronounce sentence? DEFENDANT: No, Your Honor.
        COURT: Nothing at all? DEFENDANT: No, Your Honor.
        COURT: Mr. Ayers, you see the deputy sitting over there?
DEFENDANT: Yes, Your Honor.
        COURT: He’s there to take you into custody immediately
after this sentencing is over. There’s only one way you’re going to
stay out of custody and that’s for you to convince me not to send
you to prison. Now, is there something you want to say to me?
DEFENDANT: Your Honor, I—no, Your Honor.
        COURT: Nothing at all. DEFENDANT: (The Defendant
shook his head from side to side at this time.)
        COURT: The Presentence Investigative Report alludes to
the fact that there was a No Contact Order between you and Ms.
Sykora at the time this happened? DEFENDANT: Yes, Your
Honor.
        COURT: And you violated the protective order to go over to
her house? DEFENDANT: Yes, Your Honor.
        COURT: You maintain you don’t remember anything [t]hat
happened once you entered the apartment? DEFENDANT: No,
Your Honor.
        COURT: See, the problem is Mr. Burrell says he does
remember. And he’s pretty specific that you’re the one who
inflicted those injuries on him, fourteen stitches, nine staples to his
head, and you can’t tell me anything at all about what happened.
How many others went with you, Mr. Ayers? DEFENDANT: Four,
Your Honor.
        COURT: Now, would any of those four have gone over to
that apartment if you hadn’t gone? DEFENDANT: Some of them
were already over there, Your Honor.
        COURT: Some went with you though? DEFENDANT: Yeah,
two went with me.
        COURT: Would they have gone with you if you hadn’t gone
yourself? DEFENDANT: I really don’t know, Your Honor.
        COURT: I think you got a good idea thought that they
probably would not have, would they?
        See, what concerns me most about this, Mr. Ayers, is
throughout this you’re not willing to take responsibility for anything
that you did in connection with it. You’re not willing to stand up and
say, “Yeah, I”—I mean other than you’re saying that you hit Mr.
Burrell once after he took a swing at you. In your mind, you—you
didn’t do anything even though you don’t remember anything of
what happened you say. So you can’t really tell me that you didn’t
do anything. And you’re not willing to admit the fact or accept the
fact that because you say you blacked out that you very well might
have done all of those things that Mr. Burrell said that you did and
that Ms. Sykora said that you did. Is there anything you want to say
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       to me about any of that, Mr. Ayers? DEFENDANT: I know I’m not
       innocent. I know I could be—I was influenced—I mean I was under
       the influence that night.

       The    court   then   explained   its   concerns   over    the   “aggravating

circumstances” of the case, including the fact that Ayers was in violation of a no

contact order when the incident took place; the gravity of the offense; and the

injuries sustained by the victim. The court then stated, “I wanted you to tell me

something that would justify my not sending you to the penitentiary right now.

And you still have nothing else you want to say?” to which Ayers responded, “I

don’t know, Your Honor. I said all I can, Your Honor. I’m sorry.” The court

sentenced Ayers to indeterminate terms of incarceration not to exceed ten years

on the burglary charge and not to exceed five years on the willful injury charge, to

run concurrently.     With regard to the domestic abuse assault causing bodily

injury, Ayers was sentenced to ten days in jail, with credit for the ten days that he

had already served.

       Ayers appeals, claiming the district court “abused its discretion by denying

[him] the right to waive his right to allocution and sentencing him to prison based

on [his] choice to stay silent during the sentencing proceeding.” Because Ayers’s

contention is raised as a challenge to the court’s discretion in sentencing rather

than a Fifth Amendment claim, we review for abuse of discretion. See State v.

Thacker, 862 N.W.2d 402, 405 (Iowa 2015) (reviewing the district court’s

sentencing order for abuse of discretion); cf. State v. Washington, 832 N.W.2d

650, 655 (Iowa 2013) (“We review de novo Washington’s claim that the

sentencing court improperly penalized him for invoking his constitutional right

against self-incrimination.”).
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      When the sentence imposed is within the statutory maximum, we
      will only interfere if an abuse of discretion is shown. In exercising
      discretion, the district court must weigh all pertinent matters in
      determining a proper sentence, including the nature of the offense,
      the attending circumstances, the defendant’s age, character, and
      propensities or chances for reform.

Thacker, 862 N.W.2d at 405 (internal quotation marks and citations omitted).

      “[A] defendant’s lack of remorse is highly pertinent to evaluating his need

for rehabilitation and his likelihood of reoffending.” State v. Knight, 701 N.W.2d

83, 88 (Iowa 2005). For that reason, “a sentencing court may properly consider

this factor, as evidenced by facts other than the defendant’s not-guilty plea, in

making a sentencing decision.” Id. At the hearing, the primary question was

whether Ayers would be sentenced to a term of imprisonment—a sentence well

within the statutory maximum. Ayers sought a deferred judgment, “a benefit”; the

sentencing court could have a “legitimate reason” for wanting to know if Ayers

had taken responsibility for his actions. See Washington, 832 N.W.2d at 657.

Moreover, the court did not order additional punishment that bore no relationship

to “a legitimate penological purpose of the inquiry that the defendant refused to

answer.” See, e.g., id. at 661 (“If Washington is still using drugs, it might be

logical to refuse to defer judgment on the ground that Washington needs a more

structured approach, but additional community service seems purely punitive.”).

      Here, the district court “state[d] on the record its reason for selecting the

particular sentence.” Iowa R. Civ. P. 2.23(3)(d). A 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.”      Washington, 832

N.W.2d at 660.     “To overcome the presumption, [courts] have required an
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affirmative showing the sentencing court relied on improper evidence.” Id. We

discern no abuse of discretion in the district court’s reasons for imposing Ayers’s

particular sentence.   We affirm the judgment and sentence entered following

Ayers’s guilty plea.

       AFFIRMED.
