STATE OF IOWA, Plaintiff-Appellee, vs. DANIEL PATRICK MCGILL, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-996 / 08-1026
Filed January 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DANIEL PATRICK MCGILL,
Defendant-Appellant.
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Appeal from the Iowa District Court for Jasper County, Thomas W. Mott,
District Associate Judge.
Daniel Patrick McGill appeals the sentence imposed following his plea of
guilty to first offense operating while intoxicated. AFFIRMED.
Gerald Feuerhelm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Christen Douglass, Assistant Attorney
General, Steve Johnson, County Attorney, and Susan Wendell, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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MILLER, J.
Daniel Patrick McGill was driving an automobile alone when in April 2007
he was involved in a single-vehicle accident in which he was seriously injured.
Testing revealed an alcohol concentration of 0.131. McGill was charged with
operating while intoxicated, first offense, in violation of Iowa Code section
321J.2(2)(a) (2007). After a period of recuperation from his injuries and physical
therapy McGill pled guilty in April 2008.
The district court sentenced McGill to serve one year in jail, with all but
120 days suspended and the 120 days to be served in staggered thirty-day
increments. It provided that McGill could avoid serving all but the initial thirty
days if he complied with certain terms and conditions of probation. The court
also sentenced McGill to pay a fine of $625, waiving the remaining one-half of
the otherwise required fine of $1250 because McGill apparently had met the
statutory conditions for such a waiver.
McGill appeals. He claims:
THE TRIAL COURT’S SENTENCE WAS EXCESSIVE AND
ARBITRARY.
McGill relies on the federal constitutional prohibition against cruel and unusual
punishment. See U.S. Const. amend. 8 (“Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). He
cites State v. Lara, 580 N.W.2d 783, 784 (Iowa 1998), for the proposition that
“[t]he prohibition against cruel and unusual punishments prohibits sentences that
are not proportionate to the crime committed.” McGill “submits that the court’s
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sentence is grossly disproportionate to the crime committed and that [it] should
be set aside and the case remanded for re-sentencing.”
The Supreme Court has “set forth a three-prong test for analyzing whether
a punishment is disproportionate to the offense charged.” Id. at 785. The test
requires examination of
(1) The gravity of the offense and the harshness of the penalty; (2)
a comparison of the sentence imposed with those for other crimes
in the same jurisdiction; and (3) comparison with the sentence
imposed for commission of the same crime in other jurisdictions.
Id. McGill merely asserts that his sentence is grossly disproportionate to his
crime. He has provided no examination, analysis, or reasoned argument as to
how these three factors apply to the facts of this case. We deem the stated issue
waived.
See Iowa R. App. P. 6.14(1)(c); Hollingsworth v. Schminkey, 553
N.W.2d 591, 596 (Iowa 1996) (“When a party, in an appellate brief, fails to . . .
argue . . . in support of an issue, the issue may be deemed waived.”); see also
State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999) (“[w]here a party’s failure to
comply with the appellate rules requires the court to assume a partisan role and
undertake the [party’s] research and advocacy, we will dismiss the appeal.”)
(quotation and citation omitted).
McGill asserts in his brief that our standard of review on the sentencing
issue is for an abuse of discretion. We agree with the State that McGill’s brief
may thus arguably be seen as raising a claim that the sentence imposed by the
district court constitutes an abuse of its sentencing discretion. We thus briefly
address that question.
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Our scope of review is for correction of errors of law. Iowa R. App. P. 6.4.
Our standard of review is for abuse of discretion.
Sentencing decisions of the district court are cloaked with a strong
presumption in their favor. Where, as here, a defendant does not
assert that the imposed sentence is outside the statutory limits, the
sentence will be set aside only for an abuse of discretion. An
abuse of discretion is found only when the sentencing court
exercises its discretion on grounds or for reasons clearly untenable
or to an extent clearly unreasonable.
State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996) (citation omitted).
As noted in the sentencing transcript, McGill was fifty-five years of age at
the time of the crime involved in this case, and had previously been convicted of
operating while intoxicated on three occasions, the most recent conviction being
a felony conviction for third offense operating while intoxicated in 1994. McGill
had an alcohol concentration of more than one and one-half times the legal limit.
We find no abuse of sentencing discretion, and affirm the sentence imposed by
the district court.
AFFIRMED.
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