IN THE COURT OF APPEALS OF IOWA

No. 16-2104

Filed July 6, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DUSTIN RAY KERN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Paul R. Huscher, 

Judge.

A defendant contends the sentencing court abused its discretion in 

sending him to prison for an aggravated-misdemeanor assault conviction. 

AFFIRMED.

Nicholas J. Einwalter, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant 

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

TABOR, Judge.

After pleading guilty to assault with intent to inflict serious injury, Dustin 

Kern received an indeterminate two-year prison term. On appeal, he contends 

the district court abused its discretion in denying his bid for probation. Because 

the reasons given by the district court reveal a proper exercise of discretion, we 

affirm the sentence.

Kern told police “some confrontational discussions via Facebook” spurred 

his assault on another young man in April 2016. Kern arrived at an apartment in 

Adel where he found several people, including his victim, Z.D. In his statement

to police, Kern recalled telling Z.D. he was not afraid to “whoop his ass.” Kern 

proceeded to hold down Z.D. while punching him repeatedly in the face. Z.D. 

suffered a black eye, swollen shut, as well as multiple cuts and bruises. 

The State charged Kern with willful injury, a class “D” felony, in violation of 

Iowa Code section 708.4(2) (2016). The State reduced the charge to assault 

with intent to inflict serious injury, an aggravated misdemeanor, in violation of 

section 708.2(1), in exchange for Kern’s plea of guilty. Under the plea 

agreement, Kern was free to argue for what he considered an appropriate 

sentence and the State, “at worst,” would make a recommendation consistent 

with the presentence investigation (PSI) report.

The PSI report recommended incarceration, noting Kern’s history of 

“assaultive behaviors combined with substance abuse.” According to the PSI, 

Kern committed burglary and assault while displaying a weapon in 2001, serving 

time in prison for those convictions until 2005. Kern had another assault 

conviction in 2014 and a conviction for possession of drug paraphernalia in 2015. 
3

The PSI report pointed to Kern’s “history of unsuccessful community supervision 

and his apparent propensity for violence,” concluding “it appears the defendant 

cannot be safely managed in the community.” 

At the sentencing hearing, the State asked the district court to impose a 

term of imprisonment not to exceed two years. Defense counsel told the court 

his client’s conduct “was fueled by his drug addiction” and asked the court to 

structure a probationary sentence, which could provide Kern “an opportunity to 

get the help that he greatly needs.” Counsel believed Kern was “well-suited for 

that form of supervision, despite the stumbles that he’s had in the past.” In his 

allocution, Kern, who was thirty-three years old, admitted making “a lot of bad 

choices” in his life and said he was ready “to start going down a different road, 

because the one [he’d] been on was pretty bumpy.” Kern told the court he 

recently made two “good choices” by getting married and starting a family.

After considering the statements of counsel and the PSI report, the district 

court noted Kern’s unsuccessful probation in April 2014 and his drug 

paraphernalia conviction just two months before this assault. The court then 

gave the following reasons for imposing a prison sentence: “Based upon the 

circumstances and the violent offense, the defendant’s prior criminal history, the 

need for protection of the public from further offenses, and all of the 

circumstances as stated in the [PSI] report, the court does not find that probation 

is appropriate in this case.”

Kern appeals his sentence, alleging the district court acted unreasonably

in choosing a term of confinement over probation. 
4

We review Kern’s sentence for correction of errors at law and will not 

reverse unless we find an abuse of discretion or a defect in the sentencing 

procedure. See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We 

entertain a presumption in favor of the sentence chosen by the district court, so 

long as it is within the limits of the statute. See id. A district court abuses its 

discretion when it chooses the sentencing option “on grounds clearly untenable 

or to an extent clearly unreasonable.” State v. Hill, 878 N.W.2d 269, 272 (Iowa 

2016). The grounds are untenable when they are “not supported by substantial 

evidence” or are “based on an erroneous application of the law.” Id. (quoting 

State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014)).

Kern argues the district court gave too much weight to his recent 

misdemeanor convictions when rejecting the option of community-based 

supervision. He claims his substance-abuse and mental-health issues “sadly” 

cannot be adequately addressed while in the custody of the Department of 

Corrections. Kern also complains the district court gave took little consideration 

to the fact he “now has a wife, and at the time of sentencing they were expecting 

a child.” In Kern’s view, “[s]uch life-changing events can’t be glossed over in 

regard to how this time is different, how [he] could successfully complete a term 

of probation.”

The State responds that “Kern’s drug abuse and psychological needs can 

be addressed while he serves his sentence of incarceration.” The State argues 

the district court “properly exercised its discretion in declining to grant a lenient 

sentence to a defendant with a significant criminal history, a pattern of 

squandering opportunities for reform, and significant treatment needs.”
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We are persuaded by the State’s argument. “Granting probation is a 

matter of the trial court’s broad discretion subject only to the statutory provision 

that the grant shall promote the rehabilitation of the defendant and the protection 

of the community.” State v. Ramirez, 400 N.W.2d 586, 590 (Iowa 1987) (citing 

Iowa Code §§ 901.5, 907.5 (1985)). Here, the PSI report questioned whether 

Kern’s violent behavior could be “safely managed in the community.” In its 

statement of reasons satisfying Iowa Rule of Criminal Procedure 2.23(3)(d), the 

court highlighted the violent nature of this offense and Kern’s criminal history, 

emphasizing “the need for protection of the public from further offenses” by Kern. 

The court identified valid sentencing objectives. See State v. Ludwig, 305 

N.W.2d 511, 513–14 (Iowa 1981). We find no abuse of discretion.

AFFIRMED.