STATE OF IOWA, Plaintiff-Appellee, vs. KENTRAL LAMONT BARNES, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-741 / 05-2051
Filed November 16, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KENTRAL LAMONT BARNES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey A.
Neary, Judge.
Defendant
appeals
his
sentence
for
third-degree
sexual
abuse.
AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, Thomas S. Mullin, County Attorney, and Drew Bockenstedt, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
2
VAITHESWARAN, J.
Kentral Barnes pled guilty to third-degree sexual abuse and was
sentenced to an indeterminate prison term not exceeding ten years. On appeal,
Barnes contends his sentence was “illegal” because a psychosexual evaluation
that was to have been included in his presentence investigation report was not
completed prior to sentencing.
Our highest court has defined illegal sentences as sentences that are
beyond the power of the court to impose. Tindell v. State, 629 N.W.2d 357, 359
(Iowa 2001). The ten year prison term imposed here was authorized by statute.
Iowa Code §§ 902.3, 902.9 (2005). Therefore, the sentence was not illegal.
We believe Barnes is really contending that the sentence was imposed
using an illegal procedure, in this case an incomplete presentence investigation
report.
Tindell, 629 N.W.2d at 359 (distinguishing illegal sentences from
challenges to sentences which, because of procedural errors, are illegally
imposed). Our review of this issue is for errors of law. State v. Witham, 583
N.W.2d 677, 678 (Iowa 1998).
We discern no error. On June 3, 2005, the district court ordered Barnes to
undergo a sexual offender evaluation and scheduled sentencing for August 11,
2005. Barnes did not appear on that date. A day later, his attorney asked for a
postponement of the sentencing proceedings to allow Barnes “to commence” the
sex offender evaluation.
The district court granted the motion and ordered
Barnes to appear on August 23, 2005, having accomplished the following tasks:
(1) payment of the evaluation fee, (2) completion of two tests required for the
evaluation, and (3) scheduling of “the interviews that are required for the
3
evaluation.”
On September 20, 2005, the director of the entity charged with
performing the psychosexual evaluation advised corrections’ employees that
Barnes “attended his testing on an extremely sporadic basis.”
He said the
evaluation was not complete “by [Barnes’s] own choosing.”
The director
continued, “[w]e apologize for not having the psychosexual evaluation complete
but working with Kentral has been most difficult.”
It is clear from this evidence that a psychosexual evaluation was not
available for the district court’s review because Barnes refused to cooperate with
the individuals who were to perform the evaluation. Under these circumstances,
we conclude the district court did not err in proceeding with sentencing without
the benefit of the psychosexual evaluation. Cf. State v. Breese, 581 N.W.2d 631,
632 (Iowa 1998) (“If sentencing cannot occur until a defendant ordered to
undergo
a
substance-abuse
evaluation
complies
uncooperative defendant can delay sentencing.
with
the
an
Such a delay is against the
public interest.”).
We affirm Barnes’s sentence for third-degree sexual abuse.
AFFIRMED.
order,
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