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IN THE COURT OF APPEALS OF IOWA No. 2-402 / 11-1602 Filed June 27, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. JEREMY JOSEPH BLANCHETTE, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates (plea) and James Q. Blomgren (sentencing), Judges.

Defendant appeals his sentence for possession of marijuana with intent to deliver. SENTENCE VACATED AND REMANDED FOR RESENTENCING.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Rebecca L. Petig, County Attorney, for appellee.

Considered by Vogel, P.J., Bower, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2011).

2 HUITINK, S.J. Jeremy Blanchette was charged with possession of less than fifty kilograms of marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2011); failure to affix a drug tax stamp, in violation of section 453B.3; and distributing or dispensing a controlled substance to another, in violation of section 124.402(1)(b). The State alleged he had been transporting about nine pounds of marijuana in his vehicle. Blanchette entered into a plea agreement in which he pleaded guilty to the charge of possession of marijuana with intent to deliver, a class "D" felony, and the other charges were dismissed. Additionally, the State agreed to recommend a suspended sentence. The district court accepted Blanchette 's guilty plea on June 13, 2011. The case proceeded to a sentencing hearing on August 29, 2011. The State recommended Blanchette be given a suspended sentence and placed on probation. The district court asked the prosecutor, "With regard to probation, is there a recommended term of probation?" The prosecutor relied, "No, Your

Honor. Whatever is within the Court's discretion." Defense counsel requested "the shortest term of probation possible be granted by the Court. " The court asked, "And what do you believe that term is?" believe it would be three years, Your Honor." The court sentenced Blanchette to a term of imprisonment not to exceed five years, suspended the sentence, and placed him on probation for a period of three years. Blanchette now appeals his sentence. He contends the district court did not properly exercise its discretion in selecting the length of probation Defense counsel replied, "I

3 because the court had incorrect information as to the minimum amount of probation that could be ordered. We review a sentence in a criminal case for the correction of errors at law. State v. Kramer, 773 N.W.2d 897, 898 (Iowa Ct. App. 2009). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). Where a court has discretion, it must exercise its discretion, and failure to do so requires vacation of the sentence and remand for resentencing. State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). A sentencing court determines the proper length of probation. Iowa Code

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