IN THE COURT OF APPEALS OF IOWA

No. 15-2184

Filed May 3, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

SHAWN KALE NICKERSON,

Defendant-Appellant.

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Appeal from the Iowa District Court for Des Moines County, John M. 

Wright, Judge.

A defendant appeals the sentences imposed following his pleas of guilty to 

possession of a firearm by a felon and possession of methamphetamine. 

SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

FOR RESENTENCING.

Ryan J. Mitchell of Orsborn, Milani, Mitchell & Goedken, L.L.P., Ottumwa, 

for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant 

Attorney General, for appellee.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

Shawn Nickerson appeals the sentences imposed following his guilty 

pleas to possession of a firearm by a felon and possession of methamphetamine. 

He contends the district court abused its discretion by failing to give reasons for

rejecting probation or for ordering his prison sentences to run consecutively. We 

find the district court provided ample rationale for imposing incarceration, but 

because the district court failed to offer any reasons for consecutive sentences, 

we vacate that portion of the order and remand for a new sentencing hearing.

I. Facts and Prior Proceedings

On July 22, 2015, the State charged Nickerson with two counts of 

possession of a firearm by a felon, a class “D” felony, in violation of Iowa Code 

section 724.26(1) (2015), and one count of possession of a controlled substance

(methamphetamine), third offense, a class “D” felony, in violation of section 

124.401(5). At a pretrial conference on October 6, the parties reached a plea 

agreement. The State agreed to dismiss one of the firearm-possession counts,

and Nickerson agreed to plead guilty to the other firearm-possession count and 

an amended count of possession of a controlled substance, second offense, an 

aggravated misdemeanor. The parties acknowledged sentencing would be 

“open,” but they agreed the State would recommend concurrent terms of 

incarceration and Nickerson would ask for probation at the sentencing hearing. 

At the November 23, 2015 sentencing hearing, the State, consistent with 

the plea agreement, asked the court to order incarceration with the two 

sentences to run concurrently. Nickerson, through counsel, requested the court 

suspend his sentences and order him to be placed at a residential correctional 
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facility as part of his probation. Nickerson also addressed the court personally. 

He expressed remorse but also attributed his criminal behavior to his desire to 

“help”—Nickerson claimed he had been planning to sell guns and other items to 

get money for his family—and to cope with a medical condition as he felt using 

methamphetamine helped alleviate his symptoms of multiple sclerosis. 

Following Nickerson’s statement, the district court imposed a period of 

incarceration not to exceed five years on the firearm-possession count and a

period of incarceration not to exceed two years on the controlled-substance 

count, to be served consecutively. Nickerson appeals his sentences.

II. Standard and Scope of Review

We review a district court’s sentencing decision for an abuse of discretion. 

See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). “A district court abuses its 

discretion when it exercises its discretion on grounds clearly untenable or to an 

extent clearly unreasonable.” Id. We consider a district court’s reasoning 

“untenable when it is not supported by substantial evidence or when it is based 

on an erroneous application of the law.” See id.

III. Analysis

Nickerson argues the district court abused its discretion by sentencing him 

to prison without providing any rationale for its choice. The State disagrees, 

quoting a lengthy excerpt from the hearing in which the district court explained 

the multiple factors behind its sentencing decision.

At sentencing, “the district court must ‘weigh all pertinent matters in 

determining a proper sentence, including the nature of the offense, the attending 

circumstances, the defendant’s age, character, and propensities or chances for 
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reform.’” State v. Thacker, 862 N.W.2d 402, 405 (Iowa 2015) (quoting State v. 

Johnson, 476 N.W.2d 330, 335 (Iowa 1991)). The court is also required to state 

on the record its reasons for selecting the particular sentence. Iowa R. Crim. P. 

2.23(3)(d). Both these requirements “ensure[] defendants are well aware of the 

consequences of their criminal actions” and “afford[] our appellate courts the 

opportunity to review the discretion of the sentencing court.” Hill, 878 N.W.2d at 

273 (quoting State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014)).

The district court satisfied these requirements. While the court did not 

provide reasons for imposing incarceration in its written judgment, the court

spoke extensively about its rationale for imposing incarceration at the sentencing 

hearing. See Thompson, 856 N.W.2d at 919 (stating the district court may 

satisfy the Iowa Rule of Criminal Procedure 2.23(3)(d) requirement “by orally 

stating the reasons on the record or placing the reasons in the written sentencing 

order”).

The district court explained it had considered Nickerson’s age, thirty-two;

the specific facts of the case; and Nickerson’s sizeable criminal record, which 

included past convictions for voluntary absence, assault on a peace officer, and 

domestic abuse. The court acknowledged the presentence investigation (PSI) 

report, which recommended incarceration. The court also weighed the attorneys’

arguments, Nickerson’s statement to the court, and a detailed letter Nickerson 

submitted before the sentencing hearing. Finally, the court recounted 

Nickerson’s failure to take advantage of past opportunities to reform his behavior:

I . . . note in the PSI report that there have been many instances of 

community intervention where . . . instead of putting you in prison 

society has tried to help you, tried to rehabilitate you, within the 
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community. And that’s what [your attorney] is suggesting that I do, 

is to keep you in the community and let us try some more.

Obviously, it hasn’t worked, because you have pled guilty to 

having a firearm in your possession as a convicted felon and to 

possessing for a second time a controlled substance. The bottom 

line is you don’t get it.

It is apparent from this recitation that all of these considerations prompted the 

court to impose incarceration. Given the comprehensiveness of the district 

court’s explanation, we find no abuse of discretion related to the imposition of 

incarceration.

But the court did not specify the reasons for ordering the sentences to run 

consecutively.1 See Hill, 878 N.W.2d at 275 (requiring sentencing courts to 

“explicitly state the reasons for imposing a consecutive sentence”). Nickerson 

argues, and the State concedes, this omission necessitates a remand to the 

district court for resentencing. Because we may not assume the district court’s 

rationale for imposing incarceration also applied to its decision to run the 

sentences consecutively, we vacate that portion of the sentencing order and 

remand to the district court for resentencing. On remand, the district court should 

determine whether Nickerson’s sentences should run consecutively or 

concurrently and provide reasons for that determination.

SENTENCES AFFIRMED IN PART, VACATED IN PART, AND 

REMANDED FOR RESENTENCING.

 

1 The district court entered judgment in this matter on November 23, 2015, before our 

supreme court issued its opinion in Hill, which changed the requirements for courts 

imposing consecutive terms. 878 N.W.2d at 275. Although the district court acted 

without the guidance of Hill, we find the rule of law announced in Hill applies to this case. 

See id. (“The rule of law announced in this case . . . shall be applicable to . . . those 

cases not finally resolved on direct appeal in which the defendant has raised the issue, 

and all future cases.”).