State of Iowa v. Billy Dean Devilbiss

IN THE COURT OF APPEALS OF IOWA
No. 21-1075
Filed June 15, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BILLY DEAN DEVILBISS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Guthrie County, Randy V. Hefner,
Judge.
A defendant appeals his sentence for driving while barred as a habitual
offender. AFFIRMED.
Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.
Billy Dean Devilbiss appeals his sentence for driving while barred as a
habitual offender. He contends the district court abused its discretion by imposing
an indeterminate two-year period of incarceration. As we determine there was not
an abuse of discretion, we affirm the sentence.
I. Background Facts & Proceedings
On August 6, 2020, a county deputy sheriff stopped Devilbiss while he was
riding a motorcycle. Because of prior license revocations, Devilbiss’s driver’s
license was barred. He pled guilty to driving while barred as a habitual offender,
in violation of Iowa Code sections 321.560 and 321.561 (2020), on July 12, 2021.
Devilbiss waived his right to have a presentence investigation report completed
prior to sentencing. As there was not a plea agreement, the State and Devilbiss
were each free to make sentencing recommendations at hearing, held August 2,
2021.
Devilbiss requested the court suspend his sentence while the State asked
the court to impose a prison term. In determining the sentence, the district court
noted that the goal of sentencing was to protect the community and provide
rehabilitation to the defendant. The court also noted that “[t]o the extent apparent
in this record [the court] will consider your age, your prior record,[1] your
employment circumstances, that weighs to your benefit, family circumstances, and
the nature of the offense.” The court highlighted that this was Devilbiss’s eighth
1The State recited Devilbiss’s criminal history at the sentencing hearing as
“burglary [in the] third degree, public intoxication, two charges of carrying weapons,
three possessions of controlled substance first offense convictions, [and] several
theft [in the] third [degree] convictions.”
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conviction for driving while barred in five years.2 In particular, the court noted that,
ordinarily, “significant jail time would not be justified.” However, the court also
opined:
Each time you get behind the wheel and start driving down the road,
you’re committing a crime, and you know you’re committing a crime,
and you keep doing it, and doing it, and doing it. And at some point
in time the goal of sentencing is also to deter commission of crimes
like this.
The court sentenced Devilbiss to an indeterminate two-year period of
incarceration. Devilbiss appeals.
II. Standard of Review
Our supreme court succinctly explained our standard of review for
challenging a sentence:
We apply an abuse of discretion standard when the sentence
challenged was within the statutory limits. 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. A
ground or reason is clearly untenable when based on an erroneous
application of the law.
State v. Headley, 926 N.W.2d 545, 549 (Iowa 2019) (internal citations and
quotation omitted).
III. Discussion
Devilbiss contends the district court abused its discretion by solely
considering his prior convictions.3 Iowa Code section 901.5 instructs courts to
2 Devilbiss’s seven prior convictions for driving-while-barred resulted in a minimum
fine, then jail terms of two days, seven days, fourteen days, thirty days, forty-five
days, and sixty days, respectively.
3 Devilbiss has good cause to appeal under section 814.6 because he is
challenging “a discretionary sentence that was neither mandatory nor agreed to as
part of [his] plea bargain, and [he] is appealing that sentence and asking for
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consider which sentence “will provide maximum opportunity for the rehabilitation
of the defendant, and for the protection of the community from further offenses by
the defendant and others.” Section 907.5 instructs the court, when deciding
whether to defer or suspend a sentence, to consider the age of the defendant, the
defendant’s prior record, employment and family circumstances, the nature of the
offense, and “[s]uch other factors as are appropriate.” See also State v.
Leckington, 713 N.W.2d 208, 216 (Iowa 2006) (noting a court should consider the
nature and circumstances of the offense, defendant’s age, and chances of reform).
Devilbiss suggests the district court relied exclusively on his seven previous
driving-while-barred convictions, ignoring other factors including Devilbiss recently
becoming a grandfather, employment, and progress on paying court ordered fees.
However, the sentencing transcript belies this contention. The district court noted
it was considering which sentence would protect the community and rehabilitate
Devilbiss. In making that determination, the court expressly considered Devilbiss’s
age, family circumstances, and nature of the offense. The court commented on
how Devilbiss’s employment “weighs to [Devilbiss’s] benefit.” The court did not
ignore pertinent factors.
While the court relied heavily on Devilbiss’s prior record, particularly the
driving-while-barred convictions, such is a valid factor in determining a sentence.
See, e.g., State v. Young, No. 16-1540, 2017 WL 2672771, at *2 (Iowa Ct. App.
June 21, 2017) (finding six prior driving-while-barred convictions a proper factor
for the court to consider); State v. Hauersperger, No. 15-1602, 2017 WL 108294,
resentencing without challenging [his] guilty plea or conviction.” See State v.
Damme, 944 N.W.2d 98, 105 (Iowa 2020).
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at *4 (Iowa Ct. App. Jan. 11, 2017) (noting that the defendant’s seven driving-while-
barred offenses were relevant). This criminal history is relevant in considering
Devilbiss’s chances of rehabilitation and the risks he poses to the public, which the
court expressly noted it was considering. The district court did not abuse its
discretion. We affirm the sentence imposed by the district court.
AFFIRMED.