State v. Harvey

LeGRAND, Justice.

Defendant entered a plea of guilty to the offense of robbery as defined in § 711.1, The Code. He was sentenced to serve a term of not more than 10 years in the Men’s Reformatory at Anamosa, as provided in § 711.3. This is the judgment from which he appeals.

The sole question presented is whether the trial court abused its discretion in imposing a penitentiary sentence upon defendant.

Prior to sentence, the trial court received a presentence report which recommended defendant be sent to the Ft. Des Moines Men’s Residential Facility under supervision. There was also before the court at the time of sentencing a report from the Iowa Security Medical Facility suggesting defendant be given probation.

Nevertheless, the trial court determined defendant should serve the term heretofore described. In doing so, the court made these observations:

“I might say that I have received a pre-sentence investigation and given it careful consideration. I have listened to what [your attorney] has said and find very little in that that I disagree with, with the exception as what ought to be done * * * Ft. Des Moines is [a place] of very little restraint. * * * They’re given some guidance and some counseling, but the responsibility is their own, and there are no doors that are locked to the place and it’s not barred, and everybody is expected to pick out a program out of what is available that fits their needs, and then nobody is forced in any particular program, and I’m afraid that you’re just not ready for that sort of choice yet, and I’m going to sentence you to Anamosa but not with the idea that you’re going down there and do ten years. They have the same program as Ft. Des Moines does except that it starts with more strict rules and structure and then you work yourself out into a halfway house situation and then probation. * * * [Yjou’ll have a chance to decide for yourself, I guess, whether you’re going to spend the rest of your life in institutions or not. I think Anamosa Reformatory would be a good place for you to begin introducing some structure into your life, * * * and it’s not with any thought of being mean or cruel or punishing you that I’m picking this choice. I think with all the opportunities that are open, that are available, it’s the thing that will benefit you most. I agree with [your attorney], I don’t think you’re a menace to this community or you’d be a person who couldn’t live here, but I think that you are going to have to start structuring your life and I think this is the first good step for you, to go down there and make a good record so that soon you’ll be out and gradually work yourself back into the community.”

What is a right sentence is frequently a difficult choice to be made originally by the trial court within the limited alternatives permitted by statute. We interfere only if there is an abuse of discretion in making that choice. See State v. Horton, 231 N.W.2d 36, 39 (Iowa 1975); State v. Warner, 229 N.W.2d 776, 783 (Iowa 1975); State v. Stakenburg, 215 N.W.2d 265, 267 (Iowa 1974); State v. Davis, 195 N.W.2d 677, 678 (Iowa 1972). No such abuse appears here.

Defendant urges upon us the adoption of the ABA Standards, Appellate Review of Sentences, § 2.3(c), concerning sentencing; as espoused in the concurring opinion in State v. Horton, supra, 231 N.W.2d at 40-42. In State v. Peckenschneider, 236 N.W.2d 344 (Iowa 1975), filed contemporaneously with our opinion in the present case, we refused to do iso. However, even if we acceded to defendant’s suggestion, we could not set his sentence aside.

The trial judge considered the possibilities open to him and rejected them for reasons fully explained in the record. This is substantially what the ABA Standards would dictate in every case. While some may disagree with his conclusions, we find he was not insensitive to factors involved; that he explained the considerations which impelled his decision; and that his rationale was both valid and persuasive.

The sentence was within the limits of sound trial court discretion, and the judgment is

Affirmed.

MOORE, C. J., and REES, J., concur.

McCORMICK and REYNQLDSQN, JJ., concur specially..