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State v. Terrones9/11/2002
n, family status, employment status, and prior convictions. The court also explicitly considered the fact Terrones had started substance abuse treatment, was doing well in treatment, and had made some changes in his life, all of which the court considered as "positive" things. However, the court also noted that Terrones had only been participating in the substance abuse program for one month and he had only attended approximately six 12-step meetings since his arrest in August of 2001, nearly six months prior to sentencing.
Furthermore, the court took into account the fact Terrones had been granted probation after his second OWI conviction but had violated that probation by committing the offense of lascivious acts with a child and had been incarcerated for that offense. It considered the fact his probation on the OWI offense was thereafter revoked and he was ordered to serve the OWI and lascivious acts sentences consecutively. The court noted Torrones was released from prison in May of 2000 and only shortly over a year after release he was again arrested for driving while intoxicated.
Although the court expressly considered the possibility of probation and the fact Terrones was "sincere" in wanting to be successful on probation, based on his past performances the court found "unfortunately, that sincerity alone cannot be expected to assure protection to the community from further offenses by Mr. Terrones and others who are similarly situated." In addition, the court considered the seriousness of the crime as well as the pre-sentence investigation report's recommendation for incarceration.
Based on all of the factors considered by the district court set forth above, we find the court did not abuse its sentencing discretion in ordering Terrones incarcerated for a term of not more than five years. The court considered all of the pertinent and proper factors in making its sentencing determination, including Terrones's character and chances of reform. Terrones's sentence is affirmed.
AFFIRMED.
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