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IN THE COURT OF APPEALS OF IOWA No. 2-404 / 11-1737 Filed June 27, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. DUANE LEE KNOWLES, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.

Duane Knowles appeals the imposition of a consecutive sentence following his guilty plea. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Ricki Osborn, County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ.

2 DANILSON, J. Duane Knowles appeals the sentence imposed after his guilty plea. At the time of his sentencing hearing for the conviction before the court, Knowles was already incarcerated on a different charge. He alleges the sentencing court

failed to provide a reason for imposing a sentence to run consecutively to the sentence he was already serving and requests remand for resentencing. Upon our review, we conclude the district court's overall sentencing plan sufficiently expresses the court's reasons for imposing a consecutive sentence. We affirm. I. Background Facts and Proceedings. Duane Knowles pled guilty to theft in the second degree, pursuant to a plea agreement with the State. At the plea hearing, the prosecutor pointed out that Knowles was already incarcerated on another charge, and that a sentence imposed on the instant theft charge could be run consecutively or concurrently. Knowles told the court he had talked with his attorney about how his sentences might affect each other. He expected to be discharged from the first sentence within three weeks of the sentencing hearing. The presentence investigation report recommended, and the State requested, a sentence of incarceration. The State noted Knowles had been on probation when he committed the offense that brought him before the court. Because the offense for which Knowles was being sentenced was different from that for which he was already incarcerated, the State also requested the pending sentence be ordered to run consecutively to his pre-existing sentence. The

district court sentenced Knowles to an indeterminate term of five years, to be served consecutively to any sentence he was already serving.

3 During the sentencing hearing, Knowles explained he had taken numerous classes in prison so he was not setting himself "up for failure again." The court noted, "[T]hat's great that you've taken the classes and everything, but apparently they haven't done you much good. That's the problem." The court then stated: At some point in time when we look at somebody's record, especially your record, it goes on for about three pages, we begin to think let's just forget about rehabilitation and think about incarceration and warehousing. The longer we keep you off the street, the less inclined you are to have more crime. Because you're a one -man crime spree. Your criminal history goes back to the 1980's and almost every year from that point on. And you've been given probation after probation and suspended jail and then you had your --finally a probation revoked. And I'm sorry, Mr. Knowles, but this court has to agree with the Department of Correction's recommendation. This court cannot see fit to put you back on the street. And with a criminal history you've had--in fact, you've continued to commit crimes even after you've had all the classes. After some further discussion regarding the impact upon Knowles' victim, the court imposed a term not to exceed five years and stated the "sentence of incarceration, however, shall run consecutive to any sentence for which the Defendant is currently serving." II. Error Preservation and Standard of Review. Challenges to illegal sentences are not subject to the usual error preservation and waiver rules. Iowa R. Crim. P. 2.24(5)(a); State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). We review the district court's imposition of a sentence for abuse of discretion. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010). Abuse of

discretion occurs when a court "exercises its discretion on grounds clearly

4 untenable or to an extent clearly unreasonable." Id. "The district court enjoys a strong presumption in its favor which will not be overcome absent an affirmative showing of abuse by the defendant." State v. Sumpter, 438 N.W.2d 6, 10 (Iowa 1989). III. Discussion. "If a person is sentenced for two or more separate offenses, the sentencing judge may order the second or further sentence to begin at the expiration of the first or succeeding sentence." Iowa Code

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