STATE OF IOWA, Plaintiff-Appellee, vs. JAMES ANDREW WEAVER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-526 / 05-0764
Filed October 25, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES ANDREW WEAVER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Denver D.
Dillard, Judge.
James Andrew Weaver appeals following entry of a guilty plea to and
judgment and sentence for operating while intoxicated, second offense.
AFFIRMED.
Kent A. Simmons and James D. Hoffman, Davenport, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney
General, Virginia Barchman, Assistant Attorney General, Gary Allison, County
Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
PER CURIAM.
James Andrew Weaver appeals following entry of a guilty plea to and
judgment and sentence for operating while intoxicated (OWI), second offense, in
violation of Iowa Code section 321J.2(1)(b) (2003). We affirm his judgment and
sentence.
I. Background Facts and Proceedings.
On December 15, 2004, Weaver, then a district associate judge, was
charged with OWI, second offense.
In February 2005 Weaver submitted a
written guilty plea to the charged offense, which stated the plea was being
entered pursuant to an undefined agreement with the State. In a March 2005
order the district court declined to accept the written guilty plea, noting it did not
comply with Iowa Rule of Criminal Procedure 2.8. In particular, the court noted
the guilty plea failed to specify the terms of the agreement with the State.
Concluding “a further record will be necessary to satisfy the requirements of . . .
rule 2.8,” the court ordered preparation of a presentence investigation report
(PSI), set a date for sentencing, and ordered Weaver to undergo a substance
abuse evaluation.
At the April 2005 sentencing hearing, the court engaged Weaver in a
colloquy that addressed the inadequacies of the written plea. In relevant part,
the court noted it had now received a memorandum of plea agreement, which
was signed by counsel.
The memorandum set forth the State’s favorable
sentencing recommendation, which was conditioned upon Weaver’s payment of
fines, costs, surcharges, and any other restitution, and his substance abuse
3
evaluation
and
compliance
with
any
recommended
treatment. 1
The
memorandum did not condition acceptance of the plea upon the court’s
concurrence.
After verifying with Weaver that the memorandum reflected his agreement
with the State, the court accepted Weaver’s guilty plea. Weaver was informed of
and waived his right to a delay prior to sentencing and his right to file a motion in
arrest of judgment. The court then immediately proceeded to sentencing.
The court asked Weaver if he knew “of any reason today why you would
want to withdraw your plea of guilty and stand trial,” to which Weaver responded,
“No, sir.” The court also asked if Weaver had any additions or corrections he
wished to make to the PSI. Weaver clarified some minor matters, including those
relating to income and expenses of his newly-established law practice, but had
no other additions or corrections to the PSI. Weaver did not address the portion
of the PSI that noted he had reported receiving treatment at the MARC program
at Genesis West in Davenport, Iowa, following an August 2004 relapse; that he
had reported he was currently involved in Cadeuses, an addiction aftercare
group for licensed professionals; and that the investigator requested but did not
receive verification of his participation in these programs.
The court received the sentencing recommendations of the State and
Weaver’s defense counsel, which were consistent with the memorandum of plea
agreement.
It then allowed Weaver an opportunity to “make whatever
presentation that you want to make . . . [b]ecause I don’t feel bound by the plea
1
The memorandum further noted the State would resist Weaver’s request to receive
credit for time he spent in an in-patient treatment following his arrest, but that if Weaver’s
request for credit was denied the State would not resist any applications for work release
or AA and aftercare attendance.
4
agreement . . . .” Weaver spoke at length about “the background of the offense
and the treatment and other efforts that I’ve undertaken and the after care that
I’ve participated in since treatment,” including his participation in the MARC
program and Cadeuses.
In pronouncing sentence, the court emphasized the protection of the
community and Weaver’s opportunity for rehabilitation.
Concluding Weaver
would not benefit from incarceration, the court invoked section 904.513, which
provides for a continuum of programming for the supervision and treatment of
OWI offenders committed to the custody of the Department of Corrections
(DOC). The court sentenced Weaver to the DOC for an indeterminate two-year
term, for placement at an appropriate alcohol treatment facility.
At this point Weaver requested that the court leave the record open to
receive evidence regarding the MARC program. Weaver indicated the treatment
he would receive at a DOC-approved facility would be duplicative of the MARC
program, and contended a sentence that required further residential treatment
was punitive in nature.
The court declined to leave the record open or to
withhold imposition of sentence, but stated its willingness to reconsider Weaver’s
sentence at a later evidentiary hearing.
The April 21 judgment and sentence committed Weaver to the custody of
the director of the DOC for an indeterminate two-year term, with a
recommendation that Weaver be placed at a residential facility pursuant to
section 904.513. The court stated
the reasons and factors considered by the court for this sentencing
include the following: The nature of the offense; the Defendant’s
age; his prior record; the Defendant’s unsuccessful attempts at
rehabilitation in the past; the maximum protection of the community;
5
and it will provide the Defendant with the maximum opportunity for
rehabilitation.
Weaver filed a motion for reconsideration of sentence, requesting an
evidentiary hearing to provide him an opportunity to demonstrate that treatment
under the continuum would be duplicative of prior current treatment. He also
moved the court to (1) order an addendum to the PSI, given that the presentence
investigator had now received records from MARC and Cadeuses, (2) to
reconsider his motion to reopen the record, and (3) to delay mittimus pending his
hearings on the above motions.
The court set Weaver’s motion to reconsider sentence for hearing, but
denied his remaining motions. The court stated,
Based upon the conclusion reached by the court that the
Defendant has a serious alcohol and substance abuse addiction
problem and the past failures of treatment, the court believes that
the Defendant’s sentence should commence and that any
reconsideration of sentence would be based, in part, upon the
progress of the Defendant in the treatment program pursuant to
Iowa Code Section 904.513.
Weaver immediately filed a notice of appeal. The court then cancelled the
hearing on Weaver’s motion to reconsider sentence. The court explained that,
because the appeal and posting of an appeal bond had stayed execution of
Weaver’s sentence, it was “impossible for the court to evaluate the rehabilitative
effect of the sentence.”
On appeal, Weaver asserts the district court abused its discretion when it
(1) determined that it would not be bound by the plea agreement, but did not
afford him an opportunity to withdraw his guilty plea or inform him that if he
persisted in his guilty plea the court could impose a disposition less favorable
than that provided for in the plea agreement, (2) denied his requests to leave the
6
record open to receive information related to the MARC program and Cadeuses
aftercare or to order an addendum to the PSI that would include this information,
(3) considered impermissible factors in imposing sentence, and (4) committed
him the custody of the director of the DOC, which was not consistent with and
thus not supported by the court’s express intent that he receive residential
alcohol treatment rather than incarceration.
II. Scope and Standards of Review.
We review the district court’s actions for the correction of errors of law.
Iowa R. App. P. 6.4. We reverse the district court only upon a demonstrated
abuse of discretion. See State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981)
(plea proceeding); State v. Alloway, 707 N.W.2d 582, 584 (Iowa 2006)
(sentencing).
Abuse is found only when 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).
III. Plea Proceedings.
Weaver first asserts that, because the district court refused to be bound by
the plea agreement, it was required to afford him an opportunity to withdraw his
guilty plea and to inform him that if he persisted in his guilty plea the court could
impose a disposition less favorable than that provided for in the plea agreement.
He asserts the court abused its discretion when it did not do so, because such an
opportunity and warning is required by Iowa Rule of Criminal Procedure 2.10(4),
which provides:
Rejection of plea agreement. If, at the time the plea of guilty is
tendered, the court refuses to be bound by or rejects the plea
agreement, the court shall inform the parties of this fact, afford the
defendant the opportunity to then withdraw defendant's plea, and
7
advise the defendant that if persistence in a guilty plea continues,
the disposition of the case may be less favorable to the defendant
than that contemplated by the plea agreement.
As the State points out, the foregoing is a challenge to the adequacy of
the plea proceedings. To preserve such a challenge a defendant must first file a
motion in arrest of judgment. State v. Antenucci, 608 N.W.2d 19, 19-20 (Iowa
2000). Weaver did not file a motion in arrest of judgment, and in fact waived his
right to do so. Accordingly, this alleged error is not preserved for our review. Id.
Moreover, even if we were to consider Weaver’s contention, we would
conclude it is without merit. On its face, subsection (4) appears to apply any time
a court declines to follow a plea agreement entered into by the defendant and the
State. However, subsection (4) cannot be viewed in isolation. Rather, we must
“consider the context of the provision at issue and strive to interpret it in a
manner consistent with the [rule] as an integrated whole.” Griffin Pipe Products
Co. v. Guarino, 663 N.W.2d 862, 865 (Iowa 2003).
When we do so, it soon becomes clear that the requirements of
subsection (4) are meant to apply when the plea agreement has been
conditioned upon the court’s concurrence in the agreement between the parties.
See Wenzel, 306 N.W.2d at 770-71; State v. Barker, 476 N.W.2d 624, 626 (Iowa
Ct. App. 1991). 2 Here, nothing in the written guilty plea, the memorandum of
2
Subsection (4) is preceded by the following relevant provisions:
(2) Advising court of agreement. If a plea agreement has been reached
by the parties the court shall require the disclosure of the agreement in
open court at the time the plea is offered. Thereupon, if the agreement is
conditioned upon concurrence of the court in the charging or sentencing
concession made by the prosecuting attorney, the court may accept or
reject the agreement, or may defer its decision as to acceptance or
rejection until receipt of a presentence report.
8
plea agreement, or the transcript of proceedings demonstrates any intent that the
plea agreement between Weaver and the State be conditioned upon the court’s
concurrence in any certain disposition. Thus, the court was not required to allow
Weaver an opportunity to withdraw his guilty plea, 3 or to inform him that if he
persisted in his guilty plea it might impose a less favorable disposition than
contemplated in the agreement. 4
IV. Supplementing the Record.
Weaver next asserts the court abused its discretion when denied his
requests to leave the record open to receive information related to his
participation in the MARC program and Cadeuses aftercare, and to order an
addendum to the PSI that would include this information. We cannot agree.
Weaver was given ample opportunity to address any perceived errors or
omissions in the PSI, and to fully explain his participation in both programs. As
the State notes, it was only after the court pronounced sentence, and Weaver
realized the court intended that he be placed in a residential alcohol treatment
program, that a request was made to present additional information about his
prior treatment. We cannot conclude it was clearly unreasonable or untenable
for the court to refuse Weaver’s request to supplement the record, particularly as
(3) Acceptance of plea agreement. When the plea agreement is
conditioned upon the court's concurrence, and the court accepts the plea
agreement, the court shall inform the defendant that it will embody in the
judgment and sentence the disposition provided for in the plea agreement
or another disposition more favorable to the defendant than that provided
for in the plea agreement. In that event, the court may accept a waiver of
the use of the presentence investigation, the right to file a motion in arrest
of judgment, and time for entry of judgment, and proceed to judgment.
3
We note the court did allow Weaver an opportunity to withdraw his guilty plea, albeit
after the plea was accepted, when it asked him if he knew “of any reason today why you
would want to withdraw your plea of guilty and stand trial.”
4
We further note the relevant part of the agreement only required the State to make a
certain sentencing recommendation, which it did.
9
the court expressed a willingness to consider such evidence during a hearing to
reconsider Weaver’s sentence.
V. Sentencing.
Finally, we turn to Weaver’s challenges to the sentence imposed by the
district court. In determining the proper sentence, the district court
should weigh and consider all pertinent matters in determining
proper sentence, including the nature of the offense, the attending
circumstances, defendant's age, character and propensities and
chances of his reform. The courts owe a duty to the public as much
as to defendant in determining a proper sentence. The punishment
should fit both the crime and the individual.
State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (citation omitted).
The
foregoing are some of the “minimal essential factors” to consider when exercising
sentencing discretion. State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979).
The court must state on the record its reasons for selecting a particular
sentence. Iowa R. Crim. P. 2.23(3)(d). However, it is generally not required to
give reasons for rejecting particular sentencing options. State v. Thomas, 547
N.W.2d 223, 225 (Iowa 1996).
We look to all parts of the record to find
supporting reasons for the sentence imposed. State v. Boltz, 542 N.W.2d 9, 11
(Iowa Ct. App. 1995).
A sentence will be vacated, and the matter will be
remanded for resentencing, if the district court considered an improper factor
when imposing sentence. State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999).
A.
Impermissible Factors.
Weaver asserts the court abused its
discretion when it considered two impermissible factors in imposing sentence:
his former position as a district associate judge and the fact “the court intend[ed]
the commitment [to residential treatment] to last only as long as necessary for
completion of treatment.” A review of the record refutes both contentions.
10
The court’s primary considerations when imposing sentence were the
protection of the public and assuring that Weaver received the maximum
possible opportunity for rehabilitation. The court relied on the knowledge Weaver
gained while serving on the district court, along with other factors, in determining
that he required additional residential treatment to appropriately deal with his
alcohol addiction. Responding to Weaver’s own statement that he brought “extra
issues to the docket,” the court commented:
[T]he extra issues that . . . I believe that you bring are not some
issue of disgrace or abuse of your position or even some violation
of the oath that we take for this job. The extra issues you bring I
think have to do with how much experience you’ve had dealing with
cases like this and how much you knew about the subject and the
various alternatives available to you and the signs you’ve talked
about it yourself about what is an alcoholic, what are the signs, the
denial, the programs that are available. You had all of that extra
information, and so to that extent I agree with you, you bring extra
issues. . . . [I]t’s been suggested that somehow you should be held
accountable for offense because you were a judge at this time.
And with the exception of what I just made reference to, I disagree
with that. You don’t deserve some special punishment because
you were a judge at the time that this happened. . . . For me the
issue is how much insight you had available to you, how much
based upon your obvious intellect and your direct experience with
these kinds of cases, how much you knew about the problem and
the fact that the first offense did not take hold and drive home to
you what the problem was for you.
The court specifically stated “special accountability because of the position
that you h[e]ld, is not a legitimate reason” for a particular sentence, and that
the only way that your prior profession has any impact on this
subject, I believe, is on the rehabilitation issue in which you had so
much information available to you and . . . because of your intellect
that you could understand and analyze and process, and all of the
programs that you knew were available to you.
The court went on to state,
I’m concerned about this being the last time James Weaver is
before a court for any reason, but certainly operating while
11
intoxicated. . . . [A]s I’ve repeatedly referenced, you’re an intelligent
gentleman . . . and you have all of this information available to you
because of your profession and experience, and you had to know
that drinking any amount could put you in jeopardy if you were
driving because .08 is not really a high level in relation to number of
drinks. . . . So having had the experience and jeopardizing your
profession, you still were unable to overcome your denial and your
addiction, and you were still combining drinking and driving. And I
am not convinced . . . you are able in the long run to continue to
abstain and continue to separate the drinking from the driving. And
I don’t think it’s because you disrespect the system or . . . you don’t
understand, but . . . that it’s beyond your willpower to deal with this
subject, at least I’m not convinced at this time that you can control
it. I don’t want to send you to prison . . . [and] I think county jail is a
terrible answer for someone who is an alcoholic. . . . . So what I’m
going to do is I’m going to invoke section 905.413 . . . .
....
. . . [U]pon achievement of the maximum benefits from the
program, you would be released on parole, I think. And that’s my
intent. And I think that in your case that could be a significantly
shorter period of time than it is for standard persons placed there
who don’t have the insight and the number of programs that you’ve
already participated in. But I think that another go around of
intensive treatment is appropriate, and that’s the setting that I think
is the best available that we can monitor and control.
(Emphasis added).
Contrary to Weaver’s suggestion, we do not read the foregoing as a
conclusion by the district court that an intelligent individual with access to
information and resources should be able to control or overcome an alcohol
addiction.
Rather, the court reasonably concluded that if Weaver risked his
career by operating a motor vehicle while intoxicated for not the first but the
second time, after having received treatment, and being fully aware of relevant
information and resources, then he was not yet able to maintain his sobriety and
accordingly required further intensive treatment. We see nothing impermissible
in considering such circumstances in an attempt to tailor the sentence to the
individual needs of the defendant. See State v. Cole, 452 N.W.2d 620, 622
12
(Iowa Ct. App. 1989) (“A defendant's alcoholism, and his attempts or failure to
control it, are factors to be considered by a sentencing court.”).
We also reject Weaver’s contention that the court impermissibly
considered the possible duration of residential treatment as a factor for imposing
sentence. The language Weaver refers to, which we have quoted above, is no
more than the court’s explanation of residential treatment under the OWI
continuum, and why it believed Weaver would benefit from such placement. See
Iowa Admin. Code r. 201-47.4 (explaining structure of continuum program).
B. Reasons For Sentence. We therefore turn to Weaver’s contention
that the district court abused its discretion when it committed him to the custody
of the DOC under the continuum of section 904.513, because there was no
assurance he would be placed in a residential alcohol treatment program as the
court intended, and the possible alternative of incarceration was not supported by
the reasons the court gave for imposing sentence. As Weaver points out, the
district court stated quite clearly that it believed Weaver would not benefit from
incarceration, and that he would be best served by participation in a residential
alcohol treatment program. As Weaver further points out, although placement in
a residential treatment program is one of the continuum of options available
under section 904.513, so too is incarceration. Moreover, the decision of which
alternative a defendant will receive is a matter within the purview of the DOC,
and not the district court. Id. Thus, Weaver reasons, since the court’s sentence
could possibly lead to incarceration, it is wholly inconsistent with the stated
reasons for imposing that sentence.
13
We recognize the apparent tension between the court’s intent that Weaver
receive residential treatment, and the possibility of incarceration under the
sentence imposed.
However, we find it significant that the continuum under
section 904.513 is a program specially developed to facilitate the treatment of
individuals convicted of OWI offenses. There is a presumption that “assignment
will be made to the least restrictive and most cost-effective component of the
continuum for the purposes of risk management, substance abuse treatment,
education, and employment.”
Iowa Admin. Code r. 201-47.2(1).
While
incarceration is a possible alternative, it will generally be imposed only where
warranted by the offender’s previous criminal record, present charges, and
attitude toward treatment. Id. Moreover, placement in the continuum ensures
that an offender will receive treatment under a high level of supervision, while at
the same time be encouraged, to the extent possible, to pursue outside
employment. Id. at 201-47.4.
All of the foregoing is consistent with the court’s desire that Weaver
receive intensive residential treatment, and its conclusion that the residential
treatment available under the continuum was “the setting that I think is the best
available that we can monitor and control.” We accordingly cannot conclude the
district court abused its discretion when imposing sentence.
AFFIRMED.
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