IN THE COURT OF APPEALS OF IOWA

No. 16-1582

Filed July 19, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

THOMAS GEORGE LINNABERRY,

Defendant-Appellant.

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Appeal from the Iowa District Court for Scott County, Stuart P. Werling, 

Judge.

The defendant appeals his sentences following his convictions for theft in 

the third degree and forgery. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant 

Attorney General, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

Thomas Linnaberry appeals his sentences following his convictions for 

theft in the third degree and forgery. He claims the district court abused its 

discretion when it denied his request for probation, which would have enabled 

him to enter a halfway house and obtain treatment for his addiction to drugs. We 

will not reverse the sentence imposed absent an abuse of discretion or some 

defect in the sentencing procedure. See State v. Formaro, 638 N.W.2d 720, 724 

(Iowa 2002). When the sentences imposed are within the statutory limits, they 

are “cloaked with a strong presumption in” their favor. Id.

Here, Linnaberry pled guilty to third-degree theft and forgery. As part of 

the plea agreement, the State did not pursue the habitual offender sentencing 

enhancement and another case was dismissed. Each side was free to advocate 

for the sentence they thought most appropriate. The State recommended the 

court sentence Linnaberry to consecutive five-year and two-year sentences. 

Linnaberry urged the court to sentence him to probation; he noted he had been in 

jail for approximately 120 days leading up to sentencing and during that time he 

had completed an anger-management course. He claimed his issues with 

substance abuse were the catalyst for his lengthy criminal history, and he 

maintained he was ready to address those issues at the Center for Alcohol and 

Drug Services, where a bed was then available. 

The district court sentenced Linnaberry to a term of two years for theft in 

the third degree, see Iowa Code §§ 714.2(3) (“Theft in the third degree is an 

aggravated misdemeanor.”), 903.1(2) (“When a person is convicted of an 

aggravated misdemeanor . . . the maximum penalty shall be imprisonment not to 
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exceed two years.”), and five years for forgery, see id. §§ 715A.2(2)(A) (“Forgery 

is a class ‘D’ felony . . . .), 902.9(e) (“A class ‘D’ felon, . . . shall be confined for no 

more than five years.”). The court ordered the two sentences to be served 

concurrently. The court stated:

The Court has read the [presentence investigation] PSI, and 

I do not give any consideration in the criminal history section of the 

PSI to any entries for which there is neither an admission of guilt 

nor a conviction.

That being said, the Defendant’s criminal history is 

extensive. In particular, it is—there are numerous low-level traffic 

offenses. The offenses in and of themselves individually do not 

warrant consideration, but the sheer volume of them is such that it

indicates the Defendant has a significant difficulty obeying the rules 

of society.

In addition, the Defendant has previously received almost 

every non-prison related program available to a Defendant in these 

matters. He has—multiple times he has violated probation and 

been sentenced.

He has more than one failure to appear. They may arise out 

of the same incident. The Court has assumed that they did, but

any failure to appear warrants consideration.

He has previously been incarcerated, and as I said, he has 

previously been granted probation which he has failed to complete, 

and that probation has been revoked.

Based on his criminal history, his lengthy substance abuse 

history, which he admits and which is clear to the Court even 

without his admission, the Court believes that the appropriate 

resolution in this matter is incarceration as recommended by the 

PSI author.

Linnaberry maintains the court abused its discretion because it ignored his 

presentencing efforts and his needs regarding rehabilitation. We disagree. The 

court did not place Linnaberry on probation, allowing him to seek treatment in the 

style he hoped. But the court did indicate it understood the reasons for 

Linnaberry’s criminal past and hoped treatment through the department of 

corrections would provide him the rehabilitation he needed, stating: 
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Mr. Linnaberry, I take it to heart and I believe that you are 

correct that if you wish to change the course of your future, it will 

require that you conquer your drug addiction. It’s obvious that that 

has been the engine that has been driving you in the wrong 

direction for a good period of your life.

I hope that with the treatment that you will be able to attain 

through the Department of Correctional Services that you will be 

able to master that demon and come out on the other end a useful 

and productive citizen. I wish you good luck, sir.

Because the sentences imposed fall within the statutory limits and the court 

considered the relevant factors, we cannot say the district court abused its 

discretion. We affirm.

AFFIRMED.