STATE v. DICKINSON, 01-0888 (Iowa App. 1-9-2002)

MAHAN, J.

Gary Dickinson appeals the sentence imposed by the district court after he pled guilty to driving while barred, in violation of Iowa Code sections 321.560 and 321.561 (1999). He claims the court abused its discretion and considered improper sentencing factors. We affirm on appeal.

Dickinson was charged with possession of marijuana with intent to deliver, failure to affix a drug tax stamp, driving while barred, and driving while under suspension. He entered into a plea agreement whereby he pled guilty to failure to affix a drug tax stamp and driving while barred, and the State dismissed the other two charges. The plea was made pursuant to Iowa Rule of Criminal Procedure 9 but was an open plea regarding sentencing.

The district court sentenced Dickinson to a term of incarceration not to exceed five years on the charge of failure to affix a drug tax stamp. This sentence was suspended, and Dickinson was placed on probation. Dickinson was sentenced to a term of incarceration not to exceed two years on the charge of driving while barred. Dickinson appeals only his sentence on the charge of driving while barred.

Because the challenged sentence does not fall outside the statutory limits, we review the court's sentencing decision for an abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). An abuse of discretion is found only if the court's discretion has been exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999). A sentence will be reversed if the court fails to exercise its sentencing discretion, or considers an improper factor in imposing sentence. State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999).

Dickinson contends the district court abused its discretion by sentencing him to a prison term on the charge of driving while barred. The district court entered an order stating:

The reasons for this sentence are as follows: Defendant is thirty-seven years of age and has a long criminal history related to substance abuse, assaults, and traffic offenses. He is a drug dealer and habitual traffic offender, and prior attempts at rehabilitation while on probation have not been successful. Based on the nature of the offenses and his criminal history, incarceration is appropriate. The Court chose incarceration of the shorter of the two sentences rather than the longer for both of the offenses. This sentence provides for punishment by separation from the community, both specific and general deterrence, and rehabilitation, if the Defendant will take advantage of what is offered in the Institution and by services through probation.

Dickinson claims the court improperly labeled him as a drug dealer. He asserts the court improperly considered the dismissed charge of possession of marijuana with intent to deliver.

The district court stated Dickinson was a drug dealer because he pled guilty to failure to affix a drug tax stamp. Section 453B.3 imposes on "dealers" the responsibility to affix a drug tax stamp to controlled substances. A "dealer" who violates chapter 453B is subject to civil and criminal penalties. Iowa Code § 453B.12. Dickinson pled guilty to failure to affix a drug tax stamp, in violation of section 453B.12. Thus, the district court could conclude he had pled guilty to being a drug dealer. We conclude the district court did not consider improper factors in sentencing defendant. We find no abuse of discretion.

AFFIRMED.