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IN THE COURT OF APPEALS OF IOWA No. 2-310 / 11-1888 Filed June 13, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. DUSTIN PHILIP VANNESS, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Cerro Gordo County, Bryan H. McKinley, Judge.

Defendant appeals from the sentences imposed following his guilty pleas to two counts of possession with intent to deliver or delivery of a controlled substance (marijuana). VACATED AND REMANDED FOR RESENTENCING.

Russell Schroeder Jr. of Schroeder Law Office, Charles City, for appellant. Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Carlyle D. Dalen, County Attorney, and Steven D. Tynan, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., Danilson, J., and Zimmer, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2011).

2 ZIMMER, S.J. Defendant Dustin VanNess appeals the judgment and sentence imposed by the district court for two felony drug offenses. He claims the sentencing court abused its discretion by denying him a deferred judgment because he refused to name his source for obtaining a controlled substance (marijuana) at his sentencing hearing. resentencing. I. Background Facts & Proceedings. On April 18, 2011, the State filed a trial information charging VanNess with seven drug related offenses. VanNess reached a plea agreement with the State, and on August 30, 2011, he pleaded guilty to two counts of delivery of or possession with intent to deliver a controlled substance (marijuana), in violation of Iowa Code section 124.401(1)(d) (2011), a class "D" felony. VanNess also pleaded guilty to one count of possession of a controlled substance (marijuana), a serious misdemeanor.1 The district court accepted his guilty pleas. The State agreed to dismiss the remaining four counts of the trial information as part of the plea agreement. The case proceeded to a sentencing hearing on October 24, 2011. The sentencing court heard evidence that VanNess was twenty-three years old and had college degrees in recording engineering and live sounds technology. At the time the sentencing hearing was held, VanNess was living with his mother, his sister, and his mother's fianc

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