State of Iowa v. Dustin Eugene Pherigo

IN THE COURT OF APPEALS OF IOWA
No. 18-0951
Filed November 27, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DUSTIN EUGENE PHERIGO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Kim M. Riley,
District Associate Judge.
Defendant appeals the district court decision revoking his deferred
judgment on charges of third-degree theft. AFFIRMED.
C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.
Nineteen months after receiving a deferred judgment on a third-degree theft
charge, Dustin Pherigo appeared at a probation violation hearing and admitted
various probation violations. On the heels of Pherigo’s admissions, the State filed
a second application to revoke probation. When Pherigo failed to appear at the
disposition hearing on his previous admissions, Pherigo was arrested on a bench
warrant, his deferred judgment was revoked, and a prison sentence was imposed.
On appeal, he argues the district court abused its discretion and made procedural
errors in sentencing him to an indeterminate term of incarceration not to exceed
two years. We disagree with Pherigo’s arguments and affirm the district court.
1. Facts and Procedural History
Dustin Pherigo pled guilty to a charge of theft in the third degree in January
2016. The following month, the court granted Pherigo a deferred judgment. He
was placed under probationary supervision for a period of two years. At a
September 2017 hearing following the State’s application to revoke Pherigo’s
probation, Pherigo admitted to violating his probation by using marijuana and
methamphetamine and by failing to comply with treatment. The parties agreed to
set a dispositional hearing ninety days later to provide Pherigo a second chance
to comply with the rules of probationary supervision.
The State filed additional probation violations after the September 2017
hearing, and a warrant issued when Pherigo failed to appear for the December
2017 disposition hearing. While Pherigo was aware a warrant had been issued
due to his failure to appear, he did not surrender himself on the warrant. He was
taken into custody approximately five months after the issuance of the warrant
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when walking to a park with his five-year-old daughter. The disposition hearing
was rescheduled to May 2018. At the hearing, Pherigo admitted additional drug-
related probation violations and asked the court to revoke his deferred judgment,
impose a two-year prison sentence, and suspend all but forty-five days of the
sentence. Along with other sanctions, Pherigo proposed GPS monitoring and
inpatient treatment. The State recommended that the two-year prison sentence
be imposed. The court revoked the deferred judgment, entered the conviction,
and imposed a prison sentence for an indeterminate term of incarceration not to
exceed two years, with credit for time served. Pherigo appealed.
2. Jurisdiction and Standard of Review
Direct appeals from probation revocation proceedings are barred in some
circumstances. See Iowa Code § 822.2(1)(e) (2015); State v. Rheuport, 225
N.W.2d 122, 123 (Iowa 1975). In those situations, postconviction-relief
proceedings are the exclusive remedy. Iowa Code § 822.2(2). However, deferred
judgments are excepted from the rule as interlocutory rulings “made during the
prosecution of the case [that] inhere[ ] in the subsequent final judgment.” State v.
Farmer, 234 N.W.2d 89, 90 (Iowa 1975). Pherigo received a deferred judgment
on February 4, 2016, and consequently this court has jurisdiction over Pherigo’s
direct appeal from the revocation of his probation.
If the sentence challenged is within the statutory limits, we review
sentencing at probation revocation proceedings under an abuse of discretion
standard. State v. Headley, 926 N.W.2d 545, 549 (Iowa 2019); see also State v.
Allen, 402 N.W.2d 438, 443 (Iowa 1987). A sentencing hearing’s procedures are
also reviewed under an abuse-of-discretion standard. State v. Thompson, 856
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N.W.2d 915, 919 (Iowa 2014); State v. Nosa, 738 N.W.2d 658, 660 (Iowa Ct. App.
2007). “We will reverse a decision of the district court when . . . there is some
defect in the sentencing procedure.” Thompson, 856 N.W.2d at 918.
3. Discussion
Pherigo makes three arguments on appeal. First, he argues the district
court abused its discretion in imposing a prison sentence. Second, he argues a
remand is warranted on the basis that the court failed to ask him “whether the
defendant has any legal cause to show why judgment should not be pronounced
against the defendant,” under Iowa Rule of Criminal Procedure 2.23(3)(a). Third,
he argues that the court failed to enumerate the reasons for the sentence as
required by Iowa Rule of Criminal Procedure 2.23(3)(d).
a. Discretion in sentencing
Pherigo argues the court abused its discretion by sentencing him to an
indeterminate term not to exceed two years. “Where, as here, a defendant does
not assert that the imposed sentence is outside the statutory limits, the sentence
will be set aside only for an abuse of discretion.” State v. Thomas, 547 N.W.2d
223, 225 (Iowa 1996); see also Headley, 926 N.W.2d at 549. We will find an abuse
of discretion when “the district court exercises its discretion on grounds or for
reasons that were clearly untenable or unreasonable.” Headley, 926 N.W.2d at
549 (citation omitted).
The district court did not abuse its discretion when it revoked Pherigo’s
probation and imposed a sentence not to exceed two years. The court was within
its discretion to impose a sentence within the statutory range considering Pherigo’s
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repeated violations of probationary conditions and his failure to appear at a
disposition hearing.
Pherigo pled guilty to the crime of theft in the third degree on January 21,
2016. Under Iowa Code sections 714.2(3) and 903.1, a sentence of two years of
incarceration could lawfully have been imposed at that time. Instead, the court
granted Pherigo a deferred judgment. Even after the State filed an application to
revoke his probation, Pherigo continued to violate the conditions of probation after
the September 11, 2017 hearing on the revocation application. In its second
application for probation revocation, filed in November 2017, the State recounted
Pherigo’s multiple violations since the September hearing, including drug use and
failure to report for probation supervision. Moreover, Pherigo then failed to appear
at the December disposition hearing and had to be arrested pursuant to a bench
warrant.
Pherigo’s appellate brief highlights portions of his testimony from the May
2018 sentencing hearing and argues that the proffered facts constitute significant
mitigating circumstances. In support of Pherigo’s argument alleging an abuse of
discretion, he asserts the district court “erred in its disregard for the context of
Pherigo’s current circumstances including age, education, housing, employment,
his family support structure, and his desire and motivation to comply with
substance abuse treatment and stay clean and sober.” More specifically, Pherigo
underscores (1) his father, ex-wife, and girlfriend can offer emotional support; (2)
he held two jobs and made regular rent and utility payments prior to being arrested
on the most recent warrant; (3) his strong desire to avoid negative impacts on his
daughter provides significant motivation to comply; (4) he had previously
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successfully completed outpatient treatment for substance abuse; and (5) while
incarcerated he participated in religious services and took advantage of group
therapy.
The record reflects Pherigo had made some recent minimal progress by the
time of the disposition hearing. Prior to his arrest, he was employed and had been
able to rent a room for his residence. However, he continued to use illegal
substances, by his own report, up to a week prior to his April 2018 arrest. After his
arrest, he attended three NA meetings and completed a substance abuse
evaluation. The court was not obligated to find that these recent efforts
compensated for multiple prior failures to comply with probation conditions. A court
may properly base a probation revocation on violations of probation conditions,
such as failure to communicate with probation officers or illegal drug use. State v.
Kirby, 622 N.W.2d 506, 510–11 (Iowa 2001). Given the repeated probation
violations, the district court’s revocation of Pherigo’s probation was not “clearly
untenable or unreasonable” to constitute an abuse. See Headley, 926 N.W.2d at
549.
b. Failure to inquire whether legal cause existed
Pherigo argues the court should have inquired whether legal cause existed
to show why judgment should not have been pronounced against him. We find
this assertion amounts to an argument concerning Pherigo’s right of allocution.
The right of allocution is found in Iowa Rule of Criminal Procedure 2.23(3)(a), which
provides that “[w]hen the defendant appears for judgment, the defendant must . . .
be asked whether the defendant has any legal cause to show why judgment should
not be pronounced against the defendant.” Additionally, prior to rendition of
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judgment, “counsel for the defendant, and the defendant personally, shall be
allowed to address the court where either wishes to make a statement in mitigation
of punishment.” Id. R. 2.23(3)(d). However, the court “need not duplicate the
language” of the rule; instead “[t]he important thing is whether the defendant is
given an opportunity to volunteer any information helpful to the defendant’s cause.”
State v. Craig, 562 N.W.2d 633, 635 (Iowa 1997). Furthermore, “as long as the
district court provides the defendant with an opportunity to speak regarding his
punishment, the court is in compliance with the rule.” Id. at 635.
The district court complied with the dictates of rule 2.23(3)(a) by providing
Pherigo an opportunity to speak in mitigation of his punishment. The court in
addressing Mr. Pherigo stated, “Mr. Pherigo, you do get the last word today. If
there is something additional that you didn’t mention before, that you want to say,
this is your chance to speak. Anything, sir, that you would like to say?” Pherigo
exercised his allocution right with a statement 233 words in length.
Pherigo was provided the opportunity to exercise his right of allocution and
provided a statement of allocution to the court. By affording him that right, the
district court properly complied with the Iowa Rule of Criminal Procedure 2.23(a).
c. Failure to enumerate reasons for sentence
Lastly, Pherigo argues that the court did not enumerate reasons for
selecting a sentence, citing State v. Freeman, 404 N.W.2d 188, 191 (Iowa Ct. App.
1978), and State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980). Iowa Rule of Criminal
Procedure 2.23(3)(d) requires that the court state on the record its reason for
selecting the particular sentence. This requirement ensures that defendants are
“aware of the consequences of their criminal actions” and that appellate courts
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have “the opportunity to review the discretion of the sentencing court.” Thompson,
856 N.W.2d at 919. “The district court can satisfy this requirement by orally stating
the reasons on the record or placing the reasons in the written sentencing order.”
Id.
We find Pherigo’s argument concerning an absence of enumeration on the
record to lack merit. Preliminarily, Pherigo acknowledges the court’s following on-
the-record statement: “In light of the nature of these violations, the absconsion,
and those factors, I think that it is really questionable whether you are in a proper
frame of mind to successfully complete probation.” We need not decide whether
this statement alone as cited by Pherigo is sufficient to satisfy the requirements of
rule 2.23(3)(d) because the court further explained its rationale for Pherigo’s
sentence on the record.
First, the court emphasized several times that Pherigo’s absence from
supervision was a reason not to grant his request for a suspended sentence and
probation. Aside from the above-recited statement, the court also told Pherigo
“you, essentially, absconded from supervision” and “no one knew where you were.”
Second, the court opined that Pherigo’s poor conduct while previously on
probation made a grant of additional probation inappropriate: “Typically, a deferred
judgment is reserved for someone who is a first-time offender, someone who
shows a lot of promise, and the Court expects exemplary conduct from someone
in that situation. And clearly, your conduct was anything but exemplary.” The court
also told Pherigo that he “had violated the terms of probation in a number of
different ways.”
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Third, the court indicated Pherigo’s attitude was incompatible with granting
a suspended sentence and probation. In addition to the statement quoted in
Pherigo’s brief, the court stated:
I’m not one hundred percent convinced today that you are in
the right frame of mind to succeed on probation. I think it is
questionable. If having the incentive of having this offense stricken
from your record wasn’t sufficient to induce you to comply with
probation, I’m not sure now with a suspended sentence and
probation—how that would change, how you would operate any
differently under a suspended sentence than you did under a
deferred judgment. In other words, there was a great deal of
incentive for you before to get through this probation, get this thing
off your record and not have to have a theft conviction on your record.
The court determined another opportunity for Pherigo to avoid prison was
not warranted. We find the record made by the district court satisfies the
requirements of rule 2.23(3)(d).
4. Conclusion
The district court did not abuse its discretion in determining the sentence.
Further, the court did not fail to provide Pherigo his allocution right or fail to
enumerate the reasons underlying its sentence. Accordingly, we affirm the district
court.
AFFIRMED.