Davonus Dante Smart v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-0421
Filed February 5, 2020

DAVONUS DANTE SMART,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.

Davonus Smart appeals from the sentence imposed upon his conviction for

possession of a controlled substance (marijuana), third offense. AFFIRMED.

Justin R. Wyatt of Woods, Wyatt & Tucker, PLLC, Glenwood, for appellant.

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

Attorney General, for appellee State.

Considered by Bower, C.J., and May and Greer, JJ.
2

BOWER, Chief Judge.

Davonus Smart pleaded guilty to possession of a controlled substance

(marijuana), third or subsequent offense, in violation of Iowa Code

section 124.401(5) (2017). The court imposed a two-year term of incarceration—

which was suspended—informal probation for two years, a $625 fine, a thirty-five

percent surcharge, and $125 for a law enforcement initiative surcharge.1

On appeal,2 Smart argues the court abused its discretion by imposing the

minimum fine and that his written guilty plea with unidentified written notations on

it should be set aside.3

When “the sentence imposed is within the statutory maximum, we will only

interfere if an abuse of discretion is shown.” State v. Thacker, 862 N.W.2d 402,

405 (Iowa 2015) (citation omitted). In State v. Thompson, 856 N.W.2d 915, 921

(Iowa 2014), our supreme court held, “[I]f the defendant waives reporting of the

sentencing hearing and the court fails to state its reasons for the sentence in the

written sentencing order, the court has abused its discretion, and we will vacate

the sentence and remand the case for resentencing.”

1 Neither the acceptance of the plea nor sentencing involve a recorded hearing.
Thus, our record is limited to the filed documents.
2 The State argues Smart has no right to appeal from his plea of guilty based on

the newly-enacted amendments to Iowa Code section 814.6(1)(a) (2019)
(eliminating a defendant’s right to appeal from a guilty plea unless the defendant
is convicted of a class “A” felony or establishes good cause). Because Smart’s
appeal was pending before the effective date of the amendment—July 1, 2019—it
is not applicable here. State v. Macke, 933 N.W.2d 226, 231 (Iowa 2019).
3 The written guilty plea notes a minimum fine of $625 fine; Smart objects to the

word “imposed” and initials “JLW” that appears in pen next to the number. Smart
contends the initials do not correspond to any involved individual. The State
asserts the assistant county attorney on the case was Jeremy L. Westendorf,
whose initials are J.L.W.
3

Smart argues that because the court did not explicitly acknowledge it had

the discretion to suspend the fine, we should assume it did not know it had the

discretion to waive the fine, and we must vacate the sentence and remand for

resentencing.

The sentencing order provides:

....

The district court’s sentence is cloaked with a strong presumption in its

favor, and we will not reverse its sentence absent an abuse of discretion. See

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The State argues the

sentencing form itself contradicts Smart’s assertion—because the form had check

boxes for either suspending or imposing the fine, the court’s checking of the box

to impose the fine indicates the court exercised its discretion. We conclude Smart

has failed to meet his burden to overcome the presumption of regularity here, and

we therefore affirm.4

AFFIRMED.

4 We have considered Smart’s alternative argument that the district court erred by
“[a]ccepting” an “altered” written guilty plea. Smart failed to file a motion in arrest
of judgment and, consequently, he has failed to preserve error on this issue. See
Iowa R. Crim. P. 2.24(3)(a). We decline to reach the merits of this argument.