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warrant, his deferred judgment was revoked, and a prison sentence was imposed.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.