State of Iowa v. Oscar Miguel Nunez Cabrera

IN THE COURT OF APPEALS OF IOWA

No. 19-2060
Filed February 3, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

OSCAR MIGUEL NUNEZ CABRERA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Bethany Currie,

Judge.

Oscar Nunez Cabrera appeals the sentences imposed following his guilty

pleas. AFFIRMED.

Shawn Smith, The Smith Law Firm, PC, Ames, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.

Considered by Mullins, P.J., and May and Schumacher, JJ.
2

MULLINS, Presiding Judge.

Oscar Nunez Cabrera appeals from the sentences entered following the

district court’s acceptance of Alford1 pleas to burglary in the second degree,

domestic abuse assault causing bodily injury, and stalking while subject to a

protective order. He argues the district court abused its discretion in imposing the

statutory maximum sentences and the sentences were grossly disproportionate to

the crimes committed.

We address Cabrera’s jurisdictional argument before our discussion of the

merits. Cabrera appealed his sentences for crimes charged in a felony case. In a

footnote of his appellate brief, Cabrera asked this court to also consider the

sentences imposed for crimes contained in a separate aggravated-misdemeanor

case. The latter case is admittedly not listed on the notice of appeal. Cabrera

argues this court has authority to consider the additional sentences “because the

sentences were pronounced simultaneously.” While this case was pending,

another panel of this court addressed the aggravated-misdemeanor claims in a

separate appeal and affirmed that sentence. See generally State v. Nunez

Cabrera, No. 19-2058, 2020 WL 5650606 (Iowa Ct. App. Sept. 23, 2020). We will

not address the claims again. In addition, Cabrera does not forward an argument

in relation to his sentences in the aggravated-misdemeanor case, so we deem any

such argument waived. See Iowa R. App. P. 6.903(2)(g)(3). We proceed to the

merits of the appeal related only to the sentences entered in the felony case.

1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of
[a] crime may voluntarily, knowingly, and understandingly consent to the imposition
of a prison sentence even if he [or she] is unwilling or unable to admit his [or her]
participation in the acts constituting the crime.”).
3

Our review of Cabrera’s first claim is for abuse of discretion. See State v.

Pappas, 337 N.W.2d 490, 493 (Iowa 1983). “An abuse will not be found ‘unless

the defendant shows that such discretion was exercised on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.’” Id. (quoting State v.

Morrison, 323 N.W.2d 254, 256 (Iowa 1982)). “An abuse of discretion is rarely

found when sentence is imposed within the statutory maximum unless (1) the trial

court fails to exercise its discretion or (2) the trial court considers inappropriate

matters in determining what sentence to impose.” Id. at 494 (internal citations

omitted). Our review on the gross-disproportionality claim is de novo. See State

v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012).

Cabrera argues the district court abused its discretion in imposing the

maximum sentences on all charges. He also argues it abused its discretion in

ordering that the burglary and domestic-assault sentences would run concurrently

and that they would run consecutively to the sentence for stalking while subject to

a protective order. Cabrera alleges the district court failed to adequately state the

reasons for imposing the sentence and that his lack of prior criminal history and

substance-abuse issues are mitigating circumstances. The district court made the

following statements during the sentencing hearing:

In selecting this particular sentence for you, I have considered
your age, your education, your limited prior criminal history, your
employment, your family circumstances, the nature of the offenses
committed and the harm to the victims, whether a weapon or force
was used in the commission of the offenses, the need to protect the
community, the State’s recommendation, your attorney’s
recommendations, the presentence investigation report
recommendation, your statement made here today, your character,
propensities, needs, and potential for rehabilitation, the need to deter
you and others similarly situated from committing offenses of this
nature.
4

....
Sir, I understand your attorney’s argument that probation is
appropriate because you really do have a relatively limited criminal
history. This does not appear to be in character for you if you’re
looking at your previous criminal history. However, looking at the
offenses and the relatively short amount of time in between each of
them and the repeated contacts and attempts to terrorize [the
protected person], I don’t believe that a suspended sentence is
appropriate. I think that your rehabilitative needs are best served by
a period of incarceration. The sentences that I have imposed—some
will run concurrently, and some will run consecutively to each other.
. . . I find that appropriate because the offenses were
committed on different dates. As reflected in the presentence
investigation report, you have not accepted responsibility for your
offenses, and at the time of the guilty plea hearing, you entered
Alford pleas which, again, don’t show any acceptance of
responsibility on your part for you actions.

Our review of the record reveals the district court made an extensive

statement of its reasons for Cabrera’s sentence. It specifically noted Cabrera’s

limited criminal history and that the crimes appeared to be out of character. We

find the district court exercised its discretion properly and not for reasons clearly

untenable or to an extent clearly unreasonable. See Pappas, 337 N.W.2d at 493.

We now turn to the gross-disproportionality claim. Our inquiry uses a three-

step test. State v. Propps, 897 N.W.2d 91, 103 (Iowa 2017). “The first step in this

analysis is a threshold question, and if the first step is not satisfied, we need not

proceed to steps two and three.” Id. We must first “determine whether [the]

sentence leads to the inference that it was grossly disproportionate.” Id.

First, we give substantial deference to the legislature when it
establishes punishments for certain crimes. Second, “it is rare that
a sentence will be so grossly disproportionate to the crime as to
satisfy the threshold inquiry and warrant further review.” Third, a
recidivist offender is more culpable than a first-time offender and
therefore more deserving of a longer sentence. Last, a case can
have unique features that may “converge to generate a high risk of
potential gross disproportionality” and so we must consider the
unique facts of the case.
5

Id. (quoting Oliver, 812 N.W.2d at 647).

The district court imposed terms of incarceration and ordered that the

stalking sentence would run consecutively to the concurrent terms of incarceration

for burglary and domestic assault. In doing so, it considered Cabrera’s lack of

criminal history and that the crimes appeared to be out of character. The district

court then weighed those factors against “the relatively short amount of time in

between each of [the offenses] and the repeated contacts and attempts to

terrorize” the protected person. The record is clear that Cabrera engaged in

repeated, purposeful, threatening and violent conduct with a person he was barred

from contacting pursuant to a court order. It is obvious from those facts that the

district court appropriately weighed “the gravity of the crime against the severity of

the sentence.” Id. (quoting Oliver, 812 N.W.2d at 647). We find no inference of

gross disproportionality.

On our review of the record we find the district court did not abuse its

discretion in sentencing Cabrera. We also find no inference of gross

disproportionality.

AFFIRMED.