State of Iowa v. Brandon Dinovo ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0486
Filed February 17, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRANDON DINOVO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.
Brandon Dinovo appeals the sentences imposed for multiple crimes,
asserting the district court abused its discretion in not granting him deferred
judgments. AFFIRMED.
Joey T. Hoover of Hoover Law Firm P.L.L.C., Epworth, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.
Without being invited, Brandon Dinovo drove from Council Bluffs to Des
Moines in the late evening to early morning hours for the purpose of having
personal contact with his ex-girlfriend, P.G., at her residence. As Dinovo knocked
on P.G.’s door around 12:44 a.m., P.G. refused to open the door, told Dinovo to
leave, and called police. P.G.’s boyfriend, K.C., was in P.G.’s apartment at the
time. Police officers arrived to find Dinovo in the hallway of P.G.’s apartment
building. At P.G.’s request, officers told Dinovo to leave and not come back.
Dinovo left, as did the officers.
After leaving, Dinovo sent a social media message to P.G. The message
threatened that, if P.G. did not let him in and talk to him, he would send private
photos of P.G. to people she knew and her workplace. P.G. had not consented to
having the private photos taken of her or to allowing Dinovo to send them to others.
Dinovo sent P.G. one such photo, confirming that he had at least one.
Less than an hour after Dinovo was ordered away from the apartment
building by law enforcement, P.G. called the police again because Dinovo had
returned, found a way into the secured apartment building, and was once again
knocking on P.G.’s door. By the time law enforcement arrived in response to the
call, Dinovo had left, but P.G. had observed Dinovo circling the apartment building
in his vehicle while P.G. waited for the police to arrive. An officer talked to P.G.
and K.C. in the lobby area of the apartment building. Unable to find Dinovo, the
officer left again.
As P.G. and K.C. got off the elevator on their way back to P.G.’s unit after
speaking with the officer, they encountered Dinovo in the hallway. Dinovo stated
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he wanted to talk to P.G. privately in her apartment. K.C. stood between P.G. and
Dinovo in order to give P.G. a chance to safely return to her apartment. As P.G.
backed toward her apartment, she dialed 9-1-1. As P.G. was trying to unlock and
enter the apartment, Dinovo rushed K.C., who tried to stop Dinovo’s advance
toward P.G.’s apartment by holding out his hand against Dinovo’s chest. Dinovo
kept driving toward K.C. and proceeded to tackle him through the open doorway
into P.G.’s apartment. Once inside the apartment, K.C. tried to push Dinovo out
of the apartment, but Dinovo began repeatedly punching K.C. in the face. K.C.
suffered significant injuries as a result. Police eventually arrived and arrested
Dinovo at the scene.
As a result of this episode, Dinovo eventually entered Alford pleas1 to
charges of burglary in the second degree, willful injury causing bodily injury,
stalking, harassment in the first degree, and extortion. At sentencing, Dinovo
requested deferred judgments on all charges. The State recommended imposition
of judgment with suspension of the sentences. The district court denied Dinovo’s
request for deferred judgments, imposed prison sentences on all charges, and
suspended the prison sentences. Dinovo appeals, claiming the district court
abused its discretion in denying his request for deferred judgments.
In making his challenge, Dinovo makes no claim that the sentences
imposed were outside statutory limits. When the sentence imposed is within
1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of
crime may voluntarily, knowingly, and understandingly consent to the imposition of
a prison sentence even if he is unwilling or unable to admit his participation in the
acts constituting the crime.”).
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statutory limits, we review sentencing decisions for an abuse of discretion. State
v. Gordon, 921 N.W.2d 19, 24 (Iowa 2018). “An abuse of discretion is rarely found
when sentence is imposed within the statutory maximum unless (1) the trial court
fails to exercise its discretion, or (2) the trial court considers inappropriate matters
in determining what sentence to impose.” State v. Pappas, 337 N.W.2d 490, 494
(Iowa 1983) (citations omitted).
Here, Dinovo claims the district court abused its discretion by failing to
exercise its discretion because the court only considered the nature of the crime.
In support of his argument, Dinovo relies on State v. Dvorsky, 322 N.W.2d 62, 67
(Iowa 1982), which held that the sentencing court failed to exercise discretion when
the court relied on the nature of the offense alone in determining a discretionary
sentence. Dinovo’s claim is not supported by the record. In denying Dinovo’s
request for a deferred judgment, the district court stated:
I appreciate the victim impact statements and also the
statements of Mr. Dinovo.
I am not going to grant the deferred judgment. These are
serious crimes, and they have placed people in real fear. And it’s not
just a situation of wrong place, wrong time, because there were a
series of decisions made to put yourself in that position, to drive from
Council Bluffs to Des Moines, the choice not to leave when police
essentially allowed you that opportunity to leave.
I do appreciate that you’re taking some steps to better
yourself. And I’m not going to hold the system against you. I don’t
hold it against you, delaying the process. I’m familiar with the
process, and I’m not holding any of that against you.
I am going to go along with the parties’ agreement of
probation. I think a period of five years is appropriate. And the
courses that you are agreeing to take should provide some benefit
to you. And the supervision can help you make the changes that you
need to make in your life.
I am going to run all of the counts consecutive, except the
harassment and extortion are going to run concurrently. So it will be
for a total period not to exceed twenty-two years instead of twenty-
four years.
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My decision, based on the consecutive and concurrent—the
basis for my decision on consecutive and concurrent is, I’ve taken
into account the plea agreement of the parties. I’ve also taken into
account the serious nature of the offenses and to the extent I think
that those—some of those events are separate and not separate.
Also, for all of my decisions today, I've taken into account
maximum ability for rehabilitation and protection of the public.
These statements by the district court, while fairly terse and succinct, were
sufficient in themselves to show the district court relied on several factors and was
not only considering the nature of the offenses. See Goodwin v. Iowa Dist. Ct.,
936 N.W.2d 634, 648 (Iowa 2019) (“Even a ‘terse and succinct statement is
sufficient . . . when the reasons for the exercise of discretion are obvious in light of
the statement and the record before the court.’” (alteration in original) (quoting
State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015))).
The sufficiency of the district court’s statements is even more clear when
some of the court’s comments are explained. The court’s statement, “[a]nd it’s not
just a situation of wrong place, wrong time,” was a response to Dinovo’s statement
during his allocution that suggested he was a victim of circumstance due to
“[w]rong place, wrong time, in the wrong sense of everything that’s going on.” The
court’s comments about this statement by Dinovo suggest the court was taking
into account Dinovo’s efforts to minimize his responsibility, which was proper for
the court to do. See State v. Knight, 701 N.W.2d 83, 88 (Iowa 2005) (noting that
a “defendant’s lack of remorse is highly pertinent to evaluating his need for
rehabilitation and his likelihood of reoffending,” and this is true even in the context
of an Alford plea).
Further, the court’s statement about not holding the delays against Dinovo
was in response to the victim impact statement given by P.G. in which she blamed
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Dinovo for how long the process had taken and suggested it was an example of
him trying to delay taking responsibility. The fact the district court rejected this
contention by one of the victims demonstrates the district court was thoughtfully
considering the facts and circumstances as they related to sentencing and was
willing to disregard unwarranted negative suggestions, which supports the
conclusion the district court was properly exercising its discretion.
Although we find the district court’s statements during the sentencing
hearing alone sufficient to negate Dinovo’s claim the district court abused its
discretion, the district court’s proper exercise of its discretion is bolstered by the
written sentencing order that followed the hearing. In the subsequent written order,
in addition to the reasons stated on the record, the district court noted it also
considered Dinovo’s age, prior criminal record, employment circumstances, family
circumstances, and the plea agreement in arriving at the sentences imposed. The
reasons given in the written order issued after the sentencing hearing are properly
considered in determining whether the district court properly exercised its
discretion. See State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989) (holding the
sentencing colloquy, sentencing order, and presentence investigation report
together “form a sufficient basis upon which to review the exercise of the trial
court’s sentencing discretion”), overruled on other grounds by State v. Hill, 878
N.W.2d 269, 274–75 (Iowa 2016).
We find no abuse of the district court’s sentencing discretion. The district
court properly considered multiple factors beyond the nature of the offenses in
rejecting Dinovo’s request for deferred judgments.
AFFIRMED.