State v. Grgurich, 59608

• Decision Date: 25 May 1977
• Docket Number: No. 59608,59608
• Citation: State v. Grgurich, 253 N.W.2d 605 (Iowa 1977)
• Parties: STATE of Iowa, Appellee, v. Steve J. GRGURICH, Appellant.
• Court: Iowa Supreme Court

Page 605

253 N.W.2d 605

STATE of Iowa, Appellee, v. Steve J. GRGURICH, Appellant.

No. 59608.

Supreme Court of Iowa.

May 25, 1977.

Gerald R. Ralph, Holmes, Ralph & Kutmus, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., and John W. Criswell, County Atty., for appellee.

En banc.

MOORE, Chief Justice.

Defendant appeals from judgment imposed pursuant to Code section 204.410 for his accommodation sale of 2.6 grams of cocaine. He contends the trial court abused its discretion in sentencing him to a term of one year in the county jail with six months to be served on weekends and six months suspended rather than placing him on probation or deferring sentence under Code chapter 789A. He argues the trial court's remarks at the sentencing proceeding that the jury had given him a "break" at the accommodation trial were prejudicial and manifest an abuse of discretion necessitating reversal. We disagree and affirm.

In numerous recent cases we have adhered to the rule that so long as the sentence is within the statutory maximum we will not reverse absent an abuse of discretion. State v. Noonan, Iowa, 246 N.W.2d 236, 237; State v. Smith, Iowa, 244 N.W.2d 325, 327. Since the maximum sentence provided under section 204.410 is one year imprisonment in the county jail and a one thousand dollar fine, this rule is instantly applicable. While defendant had no prior record he had admittedly sold cocaine, a Schedule II Controlled Substance. He possessed an additional quantity of the drug at his college fraternity house. Thus the court was required to consider its duty to the public as well as to defendant before imposing sentence. State v. Warner, Iowa, 229 N.W.2d 776, 783. Although the presentence report suggested a deferred sentence was appropriate, such recommendation was not binding on the court. Additionally, in light of the fact the court suspended all but six months of the sentence, it is clear the report was properly considered. State v. Townsend, Iowa, 238 N.W.2d 351, 358; State v. Waterman, Iowa, 217 N.W.2d 621, 623.

We do not approve of the court's remarks prior to imposing sentence. However, we do not find them to be so prejudicial as to warrant remand when considered in the context of the offense charged and the sentence imposed. Cf. State v. Nichols, Iowa, 247 N.W.2d 249.

We conclude trial court properly exercised its discretion in imposing the innovative sentence herein utilized. See State v. Rogers, Iowa, 251 N.W.2d 239.

AFFIRMED.

All Justices concur except McCORMICK, J., who concurs specially.

REYNOLDSON and RAWLINGS, JJ., dissent.

McCORMICK, Justice (concurring specially).

While I agree with the principles of sentencing review espoused in the dissent, I am unable to say the trial court, in refusing to defer sentence, abused its discretion. It appears the court was motivated by a belief a more lenient disposition would unduly depreciate the seriousness of the offense. I concur in the result.

REYNOLDSON, Justice (dissenting).

I respectfully dissent because I believe trial court abused its discretion in imposing a jail sentence under the circumstances in this case.

It would be difficult to conceive a set of facts which would provide greater justification for a deferred sentence or probation.

The pre-sentence report was spotless. The record reflects defendant's parents are close-knit, law-abiding, stable and supportive. Defendant attended Chariton public school system through twelfth grade, graduating sixth out of approximately 143 students. His grades were at the "A" and "B" level, although he participated in baseball, football, basketball and track, and had part-time employment. He was a student council member and was elected to the National Honor Society.

At time of sentencing, defendant was within one semester of graduating from Simpson College. His grade point average was approximately 3.0. He was a biology major, a Simpson Scholar and a member of the biology honor society. He had summer employment with the Des Moines Health Department. His supervisor reported defendant had merited his promotion to crew foreman and was a responsible and dependable employee who had an ability to meet the public and handle difficult situations. He manifested a genuine interest in performing a job service.

The Dean of Students at Simpson wrote, "Steve is one of our best students at Simpson. His academic record is above average and he is involved in several worthwhile campus projects. Steve has made an excellent impression on the faculty and administration. * * * I have no question that the lesson * * * has already become deeply engrained in his mind. I have talked to him since the arrest and he clearly admits his mistake."

Similar helpful and positive reports were received from a Chariton businessman and the sheriff of Lucas County.

The pre-sentence investigator found there was no evidence defendant had a drug or alcohol dependency. He recommended,

"Due to defendant's age, his good academic background,...