State of Iowa v. Thomas George Linnaberry

IN THE COURT OF APPEALS OF IOWA

No. 16-1582
Filed July 19, 2017

STATE OF IOWA,
Plaintiff-Appellee,

vs.

THOMAS GEORGE LINNABERRY,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.

The defendant appeals his sentences following his convictions for theft in

the third degree and forgery. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

Thomas Linnaberry appeals his sentences following his convictions for

theft in the third degree and forgery. He claims the district court abused its

discretion when it denied his request for probation, which would have enabled

him to enter a halfway house and obtain treatment for his addiction to drugs. We

will not reverse the sentence imposed absent an abuse of discretion or some

defect in the sentencing procedure. See State v. Formaro, 638 N.W.2d 720, 724

(Iowa 2002). When the sentences imposed are within the statutory limits, they

are “cloaked with a strong presumption in” their favor. Id.

Here, Linnaberry pled guilty to third-degree theft and forgery. As part of

the plea agreement, the State did not pursue the habitual offender sentencing

enhancement and another case was dismissed. Each side was free to advocate

for the sentence they thought most appropriate. The State recommended the

court sentence Linnaberry to consecutive five-year and two-year sentences.

Linnaberry urged the court to sentence him to probation; he noted he had been in

jail for approximately 120 days leading up to sentencing and during that time he

had completed an anger-management course. He claimed his issues with

substance abuse were the catalyst for his lengthy criminal history, and he

maintained he was ready to address those issues at the Center for Alcohol and

Drug Services, where a bed was then available.

The district court sentenced Linnaberry to a term of two years for theft in

the third degree, see Iowa Code §§ 714.2(3) (“Theft in the third degree is an

aggravated misdemeanor.”), 903.1(2) (“When a person is convicted of an

aggravated misdemeanor . . . the maximum penalty shall be imprisonment not to
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exceed two years.”), and five years for forgery, see id. §§ 715A.2(2)(A) (“Forgery

is a class ‘D’ felony . . . .), 902.9(e) (“A class ‘D’ felon, . . . shall be confined for no

more than five years.”). The court ordered the two sentences to be served

concurrently. The court stated:

The Court has read the [presentence investigation] PSI, and
I do not give any consideration in the criminal history section of the
PSI to any entries for which there is neither an admission of guilt
nor a conviction.
That being said, the Defendant’s criminal history is
extensive. In particular, it is—there are numerous low-level traffic
offenses. The offenses in and of themselves individually do not
warrant consideration, but the sheer volume of them is such that it
indicates the Defendant has a significant difficulty obeying the rules
of society.
In addition, the Defendant has previously received almost
every non-prison related program available to a Defendant in these
matters. He has—multiple times he has violated probation and
been sentenced.
He has more than one failure to appear. They may arise out
of the same incident. The Court has assumed that they did, but
any failure to appear warrants consideration.
He has previously been incarcerated, and as I said, he has
previously been granted probation which he has failed to complete,
and that probation has been revoked.
Based on his criminal history, his lengthy substance abuse
history, which he admits and which is clear to the Court even
without his admission, the Court believes that the appropriate
resolution in this matter is incarceration as recommended by the
PSI author.

Linnaberry maintains the court abused its discretion because it ignored his

presentencing efforts and his needs regarding rehabilitation. We disagree. The

court did not place Linnaberry on probation, allowing him to seek treatment in the

style he hoped. But the court did indicate it understood the reasons for

Linnaberry’s criminal past and hoped treatment through the department of

corrections would provide him the rehabilitation he needed, stating:
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Mr. Linnaberry, I take it to heart and I believe that you are
correct that if you wish to change the course of your future, it will
require that you conquer your drug addiction. It’s obvious that that
has been the engine that has been driving you in the wrong
direction for a good period of your life.
I hope that with the treatment that you will be able to attain
through the Department of Correctional Services that you will be
able to master that demon and come out on the other end a useful
and productive citizen. I wish you good luck, sir.

Because the sentences imposed fall within the statutory limits and the court

considered the relevant factors, we cannot say the district court abused its

discretion. We affirm.

AFFIRMED.