                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0484
                             Filed January 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LEONARD R. RUSH JR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Henry W. Latham II

(plea) and John D. Telleen (sentencing), Judges.



      Leonard Rush appeals his sentence following a guilty plea to lottery ticket

theft. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Sheryl A.

Soich, Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
                                        2



VOGEL, Presiding Judge.

       Leonard Rush appeals his sentence following a guilty plea to lottery ticket

theft. He asserts that because of his severe substance abuse issues he should

have been given a suspended sentenced, placed on probation, and ordered to

reside at a residential treatment facility. We conclude the district court did not

abuse its discretion when imposing a term of incarceration not to exceed five

years. Consequently, we affirm.

       On October 28, 2014, Rush was charged with lottery ticked theft, a class

“D” felony, in violation of Iowa Code section 99G.36(1) (2013). A plea hearing

was held on January 9, 2015, and Rush entered a plea of guilty, which the district

court accepted. A sentencing hearing was held on February 26, 2015, during

which the court imposed a term of incarceration not to exceed five years, as

opposed to Rush’s request that he be granted probation.        Rush appeals his

sentence.

       We review sentencing decisions for an abuse of discretion.        State v.

Evans, 672 N.W.2d 328, 331 (Iowa 2003). An abuse of discretion is only found

when the court exercises its discretion on grounds clearly untenable or to an

extent clearly unreasonable. Id. “Sentencing decisions are cloaked with a strong

presumption in their favor. A sentence will not be upset on appellate review

unless the defendant demonstrates an abuse of trial court discretion or a defect

in the sentencing procedure, such as trial court consideration of impermissible

factors.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

       When imposing its sentence of a term of incarceration not to exceed five

years, the district court stated:
                                         3



             Mr. Rush, my duty under the law is to review what’s
      available to me in terms of community resources and to determine
      what appropriate rehabilitative plan for you would be but I must also
      consider that the public interest must be protected. I look at the
      seriousness of the crime, the effect that the crimes have on
      members of the community, your willingness to accept change and
      treatment, and what is available in the community to assist you in
      that process. I look at the least restrictive alternatives first and then
      proceed with the more restrictive alternatives.
             ....
             [I]n your particular case you still—setting aside as I am those
      dismissed charges—you have an extensive criminal history and
      what’s particularly problematic to me is that you were released on
      parole supervision in February of 2013 and while you were on
      release and parole supervision you were again consuming alcohol,
      which is a violation of your parole, but more importantly accrued
      new arrests including this charge that we’re here on today. I think
      there have been many opportunities for rehabilitation that have
      been offered to you which haven’t worked and given your prior
      criminal history. I’ll grant you that actually the dollar value of what
      you stole was not particularly great and probably rather—probably
      rather minor, the point is that you are out committing new crimes
      shortly after being released from parole supervision and for those
      reasons I believe incarceration is appropriate in this matter.

      This record establishes the district court did not abuse its discretion when

imposing its sentence. It considered proper factors, and while the presentence

investigation report—which recommended incarceration—showed Rush has

severe substance abuse issues, the court nonetheless did not exercise “its

discretion on grounds clearly untenable or to an extent clearly unreasonable”

when declining to suspend Rush’s sentence or grant him probation. See Evans,

672 N.W.2d at 331. Consequently, we affirm Rush’s sentence pursuant to Iowa

Court Rule 21.26(1)(a) and (e).

      AFFIRMED.
