State of Iowa v. Shamar Lamont Foy ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1184
Filed February 25, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHAMAR LAMONT FOY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela Doyle,
District Associate Judge.
A defendant appeals from the sentence entered after his plea of guilty to
the charge of assault with a dangerous weapon. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, Jennifer Benson, County Attorney, and Joseph Tofilon, Assistant
County Attorney, for appellee.
Considered by Tabor, P.J., Mullins, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.
Shamar Lamont Foy appeals from the sentence entered after his plea of
guilty to the charge of assault with a dangerous weapon.
I. Facts and Proceedings
Foy was in a Wal-Mart store with a girlfriend, Jennifer Savala, when he
was approached by Savala’s former boyfriend, Adam Gilson. Gilson had
observed Savalo’s car in the Wal-Mart parking lot and stopped to retrieve his
property located in the trunk of the vehicle. Gilson made the request to retrieve
the items, and Foy told Gilson to follow him to Foy’s residence and he could
retrieve the items there. Gilson wanted the items immediately and was not
satisfied with Foy’s suggestion. There was some argument about the personal
property and about money Gilson owed Savala. Eventually Gilson reached into
his pocket and pulled out a knife. At some point Foy lunged at Gilson, and
Gilson fell down.
Foy exited the store, went to the parking lot where Savala’s car was
located, and took a seat in the passenger side of the vehicle. In the meantime,
Gilson called a friend to block Savala’s car from leaving the parking lot. Gilson’s
friend complied with the request. Gilson also left the store and went to Savala’s
car. The argument about the retrieval of the property continued. Foy announced
that he had sex with Savala the night before and referred to her as “Gilson’s
bitch.” Gilson responded by calling Foy a “nigger.” Foy came out of the car,
pulled out a knife, ran at Gilson, and stabbed him twice in the leg.
The State filed a trial information charging Foy with willful injury, a class
“D” felony. Pursuant to a plea agreement, the charge was amended to assault
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with a dangerous weapon, an aggravated misdemeanor, and Foy entered a plea
of guilty. The plea agreement did not include an agreement regarding
sentencing. The State requested a two-year sentence to run consecutively with
a one-year jail sentence in the companion probation-violation case the court was
considering along with the assault charge. Foy asked for a suspended sentence
in the assault charge and a finding of contempt on the probation violation.
A sentencing hearing was held that included videos of the altercations in
the store and the parking lot. Foy testified on his own behalf and admitted to
having been convicted of forgery in 2009. He had been given a deferred
judgment but violated his probation agreement and was sent to a residential
correctional facility (RCF). He was subsequently convicted of absence from
custody at the RCF and spent twenty-four months in prison. Foy was discharged
in 2011 and in 2012 was convicted of criminal mischief. He was on probation for
the latter charge at the time he committed the assault. He had failed to make
scheduled meetings with his probation officer and a report of violation filed in that
proceeding was the companion case under consideration at the time of the
sentencing on the assault charge.
The court sentenced Foy to prison for an indeterminate term of two years,
revoked his probation, and imposed a 365-day jail sentence in the Webster
County jail to run concurrently with the sentence on the assault charge.
II. Error Preservation
A claim of a sentencing error is not subject to the ordinary rules of error
preservation and may be raised for the first time on appeal. State v. Shearon,
660 N.W.2d 52, 57 (Iowa 2003).
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III. Scope and Standard of Review
A sentence is reviewed for correction of errors of law. Iowa R. App. P.
6.907. A sentencing order is presumed appropriate and will be overturned only
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 exists only
when the decision is based on grounds clearly untenable or unreasonable. Id.
IV. Merits
Foy’s primary complaints are that the initial confrontation was instigated by
Gilson, the altercation was prolonged by Gilson, and the act for which he was
charged was provoked by Gilson’s inappropriate language. In sentencing, the
trial court stated as follows:
While I do not believe, Mr. Foy, this act was completely
unprovoked, I studied in detail the videos as they were presented to
me this morning, both within the store of Wal-Mart and outside. It
was apparent to me that Mr. Gilson pulled something from his
pocket within the confines of the store, and it has been argued to
me this morning that that was some sort of a folding knife. That
has not been disputed. So I see that it is not completely
unprovoked. However, having said that, Mr. Foy, you were able to
separate yourself from Mr. Gilson, leave the store. Name calling,
unacceptable. No doubt about it. But that does not rise to the level
of the response that you exhibited in this case . . . . You are in the
car, you get up out of the car, Mr. Gilson is standing around the
passenger side of the pick-up, and you run at him. You don’t walk
over there. It’s a very aggressive, violent, in my view, charging at
Mr. Gilson. Should he have been calling you names? Absolutely
not. Should he have come up to you in Wal-Mart? Absolutely not.
But in reviewing that video tape, your actions in charging him and
stabbing him twice is just, to me, so clearly out of line given the
circumstances of this case . . . . I’m not saying you’re the only one
who’s culpable in this particular instance. I agree with your
attorney, you’re not the only person culpable here. It appears to
me that there were at least some levels of provocation. But your
response to the provocation is so out of line, is so out of proportion,
in my view. And I have taken that into consideration as well.
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I’ve also considered your criminal record. I reviewed that
prior to coming into court today. So I’ve reviewed the fact that you
were given a deferred that was taken away. You’ve been on
supervised probation that didn’t work. You were at the RCF, that
didn’t work. Eight months after you discharge your prison
sentence, you committed the crime for with you are convicted in
SRCR344208. So I’ve considered all those things.
In summary, the trial court considered the factors that Foy now asserts
should justify this court in altering his sentence or remanding it for resentencing.
In addition to the facts of the offense, the trial court also appropriately considered
Foy’s criminal history and the fact that the past efforts at rehabilitation had not
been successful.
In sentencing, a court has little to determine how a particular individual will
respond to rehabilitation opportunities except for the individual’s past record.
Foy’s is not good. Punishment is intended to fit both the crime and the individual.
State v. August, 589 N.W.2d 740, 744 (Iowa 1999). The court has an obligation
to set out its reasons for a particular sentence. State v. Jacob, 607 N.W.2d 679,
690 (Iowa 2000). The court clearly set out its reasons, and they were consistent
with the facts upon which the charge was based and Foy’s history with the
criminal justice system. It cannot be said that the trial court abused its discretion
by denying Foy probation or imposing any other lesser penalty that might have
been available.
AFFIRMED.