State of Iowa v. Antonio Trevino III ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1310
Filed March 25, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANTONIO TREVINO III,
Defendant-Appellant.
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Appeal from the Iowa District Court for Buena Vista County, Charles K.
Borth, District Associate Judge.
Defendant appeals from his sentence for operating while intoxicated, third
offense. AFFIRMED.
Richard J. Bennett Sr. of Bennett Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, and David Patton, County Attorney, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
DANILSON, C.J.
Antonio Trevino III appeals from his sentence for operating while
intoxicated, third offense, in violation of Iowa Code section 321J.2 (2013). He
maintains the district court abused its discretion in not granting his request for a
suspended sentence. Because we find the district court did not abuse its
discretion in denying Trevino’s request for a suspended sentence, we affirm.
I. Background Facts and Proceedings.
On March 3, 2014, Trevino was charged by trial information with operating
while intoxicated, third offense.
On June 30, 2014, Trevino entered a guilty plea. The court accepted the
plea on the same day, and sentencing was set for a later date.
At the sentencing hearing on August 11, 2014, the State endorsed the
recommendation of the presentence investigation report that Trevino be
sentenced to a term of incarceration and placed in the OWI Continuum Program.
In support of its recommendation, the State explained:
[T]his is the, I believe, ninth public intox or alcohol-related
conviction in the last eight years. That is noted under the
Comments Section at Seasons Center. It said that he goes to
Compass Pointe and he is still minimizing his drinking and denies
that he has a problem. This offense arose from him traveling at an
excessive speed in a residential area and a blood alcohol level of
.146.
Trevino addressed the court and requested a suspended sentence and
probation. He expressed remorse for his actions and stated his intention to move
into an apartment by himself and to stop spending time with friends who
consume alcohol.
The court stated:
3
The Court takes a number of factors into consideration in
determining an appropriate sentence, including the maximum
opportunity or possibility for rehabilitation, and in this case the
Court notes the Defendant’s criminal history contains numerous
alcohol-related offenses, and given the nature of the current
offense, prior attempts at rehabilitation through sentencing have not
been successful. The Court also takes into consideration the
protection of the public from further offenses. In this case the Court
also takes into consideration the contents of the presentence
investigation and the recommendations contained in that document.
Based on those items, the Court finds that probation would not be
appropriate for the Defendant in this matter.
The court then sentenced Trevino to a term of incarceration not to exceed five
years and placement in the OWI Continuum Program. Trevino appeals.
II. Standard of Review.
Where, as here, the defendant does not assert that the imposed sentence
is outside the statutory limits, we review for an abuse of discretion. State v.
Thomas, 547 N.W.2d 223, 225 (Iowa 1996). An abuse of discretion is found only
when the sentencing court exercises its discretion on grounds or for reasons
clearly untenable or to an extent clearly unreasonable. Id. We review both the
court’s stated reasons made at the sentencing hearing and its written sentencing
order. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).
III. Discussion.
Trevino maintains the district court abused its discretion in not granting his
request for a suspended sentence.1 Specifically, he maintains the district court
failed to adequately consider his expression of remorse and his commitment to
make lifestyle changes.
1
Pursuant to Iowa Code section 321J.2(5)(a), a third offense of operating while
intoxciated is punishable by “[c]ommitment to the custody of the director of the
department of corrections for an indeterminate term not to exceed five years, with a
mandatory minimum term of thirty days.” (Emphasis added).
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Here, the district court stated it was taking into consideration a number of
factors in determining the appropriate sentence for Trevino. The court did not
specifically acknowledge Trevino’s claim of remorse or his stated intention to get
his own apartment and stay away from friends who consume alcohol, but the
court is not “required to specifically acknowledge each claim of mitigation urged
by a defendant.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995).
Moreover, “[T]he failure to acknowledge a particular sentencing circumstance
does not mean it was not considered.” Id. We cannot say the district court
abused its discretion in denying Trevino’s request for a suspended sentence.
We affirm.
AFFIRMED.