State of Iowa v. Thomas Edward Jenkins Sr.

IN THE COURT OF APPEALS OF IOWA

No. 16-0593
Filed November 23, 2016

STATE OF IOWA,
Plaintiff-Appellee,

vs.

THOMAS EDWARD JENKINS SR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.

A defendant appeals the sentence imposed following his guilty plea.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.

Considered by Vogel, P.J., Mullins, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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VOGEL, Presiding Judge.

Thomas Jenkins appeals the sentence imposed following this court’s prior

decision that vacated his sentence and remanded the matter for resentencing.

See State v. Jenkins, No. 15-0589, 2015 WL 8367810, at *3-6 (Iowa Ct. App.

Dec. 9, 2015). He contends in this appeal the district court abused its discretion

at resentencing by not considering mitigating factors and that it “twisted what

should have been a mitigating factor”—his remorse and acknowledgement of the

seriousness of the offense—“into an aggravating factor.”

Jenkins pled guilty to two counts of second-degree sexual abuse, and

each conviction required the mandatory imposition of twenty-five years in prison

as a forcible felony and a seventy-percent mandatory minimum. See Iowa Code

§§ 702.11, 709.3(2), 902.9, 902.12, 907.3 (2011). Thus, the only discretion the

district court had when imposing the sentence was whether the sentences should

be run concurrently or consecutively. See id. § 901.8. The court ordered

consecutive sentences, stating:

Mr. Jenkins, it’s my duty to review what is available to me in
terms of community resources and to determine what the
appropriate rehabilitative plan would be for you. I also must
consider how the public can be protected from this type of criminal
activity in the future and also consider the impact upon the
members of the community and, most importantly, the victim in this
case. I also have to consider your willingness to accept change
and treatment.
I am left with little discretion in this case as this is a forcible
felony and it requires a period of incarceration. I have reviewed
your presentence investigation [(PSI)] in all respects. I have not
considered any of the entries in the criminal history section which
do not reflect an admission of guilt or a finding of guilt in relation to
those charges.
[The prosecutor] is correct that these are egregious
circumstances, and even in your own statement this is a very
serious crime. And I do take that into consideration. And it’s based
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on the nature of the offenses, your past criminal history, your failure
to comply with the requirements of probation in the past, and
protection of the community, and also the assessment within the
PSI, that I feel it’s most appropriate that the sentences imposed be
consecutive in this case.

Our review of the district court’s sentencing decision is for an abuse of

discretion. State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). “In applying

discretion, the court ‘should weigh and consider all pertinent matters in

determining proper sentence, including the nature of the offense, the attending

circumstances, defendant’s age, character and propensities and chances of his

reform. . . . The punishment should fit both the crime and the individual.’” State

v. August, 589 N.W.2d 740, 744 (Iowa 1999) (citations omitted). However, the

court is not “required to specifically acknowledge each claim of mitigation urged

by a defendant. Furthermore, the failure to acknowledge a particular sentencing

circumstance does not necessarily mean it was not considered.” State v. Boltz,

542 N.W.2d 9, 11 (Iowa Ct. App. 1995). The court’s recognition and agreement

with Jenkins’s acknowledgment of the seriousness of the offense does not

indicate the court improperly “twisted” a mitigating factor into an aggravating

factor. Upon our review of the record, we find no abuse of discretion in the

district court’s imposition of consecutive sentences in this case.

AFFIRMED.