Ad-Express and Daily Iowegian, Centerville, IA

May 14, 2014

Court rejects abuse appeals

By MATT MILNER
Courier staff writer

---- — DES MOINES — Appeals from a pair of abuse cases, one from Appanoose County and a second from Mahaska County, have been rejected.

Both cases highlight an important aspect of the law. While a defendant may reach a plea bargain with the state, a judge is not always required to follow the prosecution’s recommendations for sentencing.

Guillermo Gibens-Acosta appealed his prison sentence after a plea bargain that dismissed a charge of kidnapping. He was convicted of enticing a child, the second charge in the original indictment.

The plea, from Mahaska County, came after Gibens-Acosta was accused of convincing two girls, “ages four and six, to go with him to a secluded hallway where he exposed himself and masturbated.”

The plea bargain included a recommendation that Gibens-Acosta be sentenced to no more than five years behind bars, with the prison sentence suspended, pay a fine and costs, and be on probation for five years. He was also ordered to complete a sexual offender program as part of his probation.

While the judge at Gibens-Acosta’s plea hearing voiced no concerns about the recommendations, a different judge presided at the actual sentencing. That judge rejected the recommendation and sent Gibens-Acosta to prison.

Gibens-Acosta appealed, claiming the court abused its discretion. The Iowa Court of Appeals disagreed, finding the sentence was within state guidelines and properly took into account factors like his rehabilitation potential and protection of society.

“The fact that a different judge presided at the sentencing hearing than Gibens-Acosta expected or desired, and different defense counsel represented him, does not aid his argument,” the court concluded.

The second case, from Appanoose County, has some strong similarities. Roger McDaniel appealed his prison sentence after being convicted of lascivious acts with a 10-year-old child. That conviction came after a plea bargain dropped a charge of second-degree sexual abuse.

At sentencing, the prosecution recommended a suspended prison sentence based on McDaniel’s lack of a prior criminal history and voluntarily seeking counseling. The judge rejected the recommendation and sentenced McDaniel to no more than five years in prison.

McDaniel’s appeal hinged on whether the judge focused on the charges to the exclusion of other factors, thus abusing the court’s discretion.

The appeals court quoted from the sentencing record, citing the judge’s comments about McDaniel’s lack of a prior record and the impact on his family, in ruling there was no violation in sentencing.