STATE OF IOWA, Plaintiff-Appellee, vs. WESTON SCOTT DAILEY, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-601 / 09-0054
Filed August 19, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WESTON SCOTT DAILEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott,
District Associate Judge.
Defendant appeals the sentence imposed following his plea of guilty to
operating while intoxicated first offense.
SENTENCE VACATED AND
REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Steve Johnson, County Attorney, and Susan Wendel, Assistant County
Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
2
DOYLE, J.
Weston Scott Dailey appeals the sentence imposed following his plea of
guilty to operating while intoxicated (OWI) first offense in violation of Iowa Code
section 321J.2(2)(a) (2007).
We vacate the sentence and remand for
resentencing.
I. Background Facts and Proceedings.
Dailey was arrested for OWI on October 4, 2008, after driving his car into
a ditch on a gravel road. When police officers came upon Dailey trying to drive
his car out of the ditch, they discovered an opened case of beer on the
passenger seat next to him. Dailey submitted to a preliminary breath test at the
scene, which indicated an alcohol concentration of .134. He later refused to
provide a sample for chemical testing at the police station.
The State charged Dailey by trial information with OWI first offense1 in
violation of Iowa Code section 321J.2(2)(a). Dailey filed a written plea of guilty
on November 26, 2008. He was subsequently sentenced to serve 180 days in
jail, with all but ninety-seven days suspended. The district court ordered him to
serve seven days of the sentence immediately. The remaining ninety days were
to be served in staggered thirty-day increments,2 as detailed in a separate
“Staggered Sentence Order.” That order provided that one month prior to each
thirty-day period, Dailey was “expected to file a Motion for Post Judgment Review
Hearing,” which was to include
1
The record indicates, however, that Dailey had received a deferred judgment in August
2004 for a prior OWI conviction. He thus could have been charged with OWI second
offense pursuant to section 321J.4(b).
2
The first thirty-day period was to begin on June 10, 2009, the second on December 10,
2009, and the third on June 10, 2010.
3
letters from employers, AA/NA sponsors, counselors, concerned
family members, friends, and /or coworkers. The motion should
include a copy of records from all electronic monitoring, and a copy
of records of AA/NA attendance. The motion should include a copy
of the certificate from DUI classes and from substance abuse
treatment.
The order further provided that upon receipt of such a motion, the court “may
schedule a hearing to decide if the next installment of the staggered jail sentence
should be executed and served.
Without a motion and a court order, the
defendant must report to jail on schedule.” Dailey was also placed on probation
for two years from the date of the sentencing order.
Dailey appeals. He claims the staggered sentence imposed by the district
court is illegal.
II. Scope and Standards of Review.
“An illegal sentence is one that is not permitted by statute.”
Gordon, 732 N.W.2d 41, 43 (Iowa 2007).
State v.
Therefore, we must examine the
sentence to determine whether it complies with the relevant statutes. State v.
Maxwell, 743 N.W.2d 185, 190 (Iowa 2008). Our review is consequently for
correction of errors at law. Id.
III. Discussion.
In an effort to curb the high rate of OWI recidivism, 3 several years ago a
district court judge in Minnesota developed the “staggered sentencing” model
utilized by the district court in this case. Under that model,
3
The National Highway Traffic Safety Administration (NHTSA) estimates that
approximately one-third of all drivers arrested or convicted of OWI have previous OWI
convictions. NHTSA, Strategies for Addressing the DWI Offender: 10 Promising
Sentencing Practices 5 (William Brunson & Pat Knighten eds. 2005) [hereinafter
4
the offender’s sentence [is split] into three equal installments, each
separated by lengthy periods of probation. Although the offender is
incarcerated immediately, serving the first installment of his
sentence in jail, the offender is empowered to make this first
installment in jail his last. During the probation period following this
first installment, but prior to the second installment of his sentence,
the offender is required to completely abstain from alcohol,
rehabilitating and treating any alcohol addiction. If the offender is
successful in satisfying these and any other conditions of his
probation, he may file with the court a motion seeking the
suspension of the second installment of his sentence . . . . If the
offender violates the conditions of his probation, the judge
immediately responds by sending the offender to jail to serve out
the remainder of his entire sentence. The DUI offender is thus
motivated to avoid the unpleasantness of incarceration by
effectively treating an alcohol abuse problem and by making lasting
lifestyle changes.
Jennifer L. Tampoya, What Works, What Doesn’t: Revising DUI Laws in West
Virginia to Reduce Recidivism and Save Lives, 111 W. Va. L. Rev. 283, 306
(2008) [hereinafter Tampoya] (footnotes omitted). The “true innovation” of this
program is that it gives the offender “responsibility for altering the course of the
future consequences,” thus addressing the “key to eliminating recidivism rates”:
treatment of the underlying chemical dependency problems many repeat OWI
offenders suffer.4
Angela Carlisle, Staggered Sentencing for Repeat DWI
Brunson & Knighten]. Studies have shown that the more OWI convictions an individual
has, the greater the likelihood that individual will reoffend. Id.
4
Up to ninety-eight percent of OWI offenders have “alcohol abuse problems.” Tampoya,
111 W. Va. L. Rev. at 299. Because drunk drivers do not fit the prototypical criminal
mode, “[s]topping repeat [OWI] offenders with traditional sanctions appears to be
unlikely.” Brunson & Knighten at 7. In fact, “several studies have indicated no reduction
in recidivism rates from jail sentences . . . . [A]t least one study has even suggested that
long periods of incarceration were linked with higher recidivism rates.” Angela Carlisle,
Staggered Sentencing for Repeat DWI Offenders: A New Weapon in the War Against
Drunk Driving, 25 Hamline J. Pub. L. & Pol’y 87, 97, 101-02 (2003). The problem with
traditional retributive sanctions is that they “do not sufficiently attack the root of the
problem of repeat drunk drivers, which is a chemical dependency problem.” Id. at 96.
Innovative sanctions, such as staggered sentencing, are accordingly needed to address
the problem of repeat OWI offenders. Brunson & Knighten at 8.
5
Offenders: A New Weapon in the War Against Drunk Driving, 25 Hamline J. Pub.
L. & Pol’y 87, 97, 101-02 (2003) [hereinafter Carlisle].
Since implementing the staggered sentencing model, Minnesota has
experienced some early success in reducing OWI recidivism and decreasing
correctional costs.5 As a result, the state’s legislature codified the staggered
sentencing scheme in 2003. See Brunson & Knighten, at 19 (citing Minn. Stat. §
169A.275.)
Minnesota has thus never been confronted with the question
presented to us here: whether staggered sentencing is authorized by statute.
See Maxwell, 743 N.W.2d at 190 (“We consider a sentence void if a statute does
not authorize it.”). Dailey claims his sentence does not comply with our state’s
relevant sentencing statutes and is thus illegal. We agree, although not for the
reasons urged by him on appeal.
Dailey first argues none of the sentencing statutes applicable to a
conviction for OWI first offense expressly authorize the staggered sentence
imposed by the district court. See Iowa Code §§ 321J.2(2) (specific sentencing
provisions for OWI offenders); 903.1 (maximum sentence for misdemeanants);
901.5 (general criminal sentencing provisions). While that may be true, none of
those statutes foreclose such a sentence. Id.; see also State v. Hildebrand, 280
N.W.2d 393, 397 (Iowa 1979) (stating the legislature “has demonstrated its
ability” in other statutes “to express its intent to eliminate sentencing options”).
5
According to an analysis of the first sixty-one offenders given staggered sentences in
Minnesota, those offenders “have experienced 49.9% less [OWI] recidivism than would
otherwise be expected based on statewide recidivism rates for comparable [OWI]
offenders in the same time frame.” Carlisle, 25 Hamline J. Pub. L. & Pol’y at 108. The
staggered sentencing model in Minnesota has also resulted in “considerably less jail
time for most of the offenders, who successfully move to have the court grant
forgiveness of subsequent segments,” thus producing “jail cost savings as well.” Id. at
109.
6
And, in fact, section 321J.2(3)(d) contemplates a similar type of split sentencing
in certain instances. See Iowa Code § 321J.2(3)(d) (authorizing sentencing court
to “order the person to serve the minimum term in segments of at least forty-eight
hours” where the court “finds that service of the full minimum term on
consecutive days would work an undue hardship on the person”); see also id.
§ 356.26 (permitting “intermittent sentencing” whereby the district court may
allow persons sentenced to county jail to leave jail for certain purposes, such as
work, school, or medical treatment).
In addition, section 901.5 vests the district court with broad discretion in
imposing sentences within statutory limits in order to “provide maximum
opportunity for the rehabilitation of the defendant, and for the protection of the
community from further offenses by the defendants and others.” See State v.
Nail, 743 N.W.2d 535, 544 (Iowa 2007) (recognizing the wide discretion afforded
to a sentencing court under section 901.5, which must be read in pari materia
with other sentencing provisions found elsewhere in the code); accord
Hildebrand, 280 N.W.2d at 396 (“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.”). For the foregoing reasons, we find Dailey’s initial
argument unavailing, as is his next argument that the sentencing scheme
imposed by the court “is contrary to the legislative intent that sentences be
continuous.”
In support of that argument, Dailey cites Iowa Code section 901.8, which
provides that “if consecutive sentences are specified in the order of commitment,
the several terms shall be construed as one continuous term of imprisonment.”
7
But, as the State points out, that statute applies to multiple sentences for multiple
offenses. See Iowa Code § 901.8 (“If a person is sentenced for two or more
separate offenses, the sentencing judge may order the second or further
sentence to begin at the expiration of the first or succeeding sentence.”
(emphasis added)). Dailey was convicted and sentenced for only one offense;
thus, section 901.8 is not applicable here.
This brings us to Dailey’s next
complaint: that the “district court has taken a one-year offense and stretched it
out over a year and a half,” which “is longer than the maximum one-year
sentence authorized by section 903.1(1)(b).”
Section 903.1(1)(b) provides that the maximum incarceration period for a
serious misdemeanor may not exceed one year. Dailey was sentenced to 180
days in jail, with all but ninety-seven days suspended. His term of imprisonment
is thus well within the maximum allowable incarceration time set forth in section
903.1(1)(b) even though he may not finish serving his sentence until more than
one year has passed.
Nothing in that provision requires that the sentence
imposed on an offender must be served within a one-year period as Dailey
seems to suggest. See, e.g., State v. Hawkeye Bail Bonds, Surety, 565 N.W.2d
615, 617 (Iowa 1997) (holding courts may delay issuance of mittimus and
execution of sentence when incident to administration of justice); Merchant v.
State, 374 N.W.2d 245, 247 (Iowa 1985) (finding remaining portion of
defendant’s state sentence could be served after completion of federal
sentence); State v. Steuk, 368 N.W.2d 171, 172 (Iowa 1985) (rejecting
defendant’s argument that cumulative duration of incarceration and probation
8
cannot exceed the period of maximum incarceration). We therefore reject this
argument as well.
Dailey next argues “the judicial reconsideration set up by the district court”
preceding the staggered thirty-day confinement periods “lacks authorization
because the court is without jurisdiction to reconsider the sentence imposed.” In
support of his argument, Dailey relies on Iowa Code section 903.2, which
provides,
For a period of thirty days from the date when a person
convicted of a misdemeanor begins to serve a sentence of
confinement, the court may order the person to be returned to the
court, at which time the court may review its previous action and
reaffirm it or substitute for it any sentence permitted by law.
He accordingly asserts that the district court “only has authority to reconsider the
sentence for a misdemeanor for 30 days from the date the person is convicted
and starts to serve his sentence.”
However, in interpreting section 903.2, our supreme court stated “[i]t is
only necessary that the court’s order indicating its intention to reconsider the
sentence be filed within thirty days of the commencement of the defendant’s
sentence; the actual hearing and reconsideration may occur later.” Hewitt v.
Iowa Dist. Ct., 538 N.W.2d 291, 292 (Iowa 1995) (emphasis added). The district
court’s order indicating its intention to reconsider Dailey’s sentence was entered
the same day Dailey was sentenced and ordered to serve the immediate sevenday portion of his sentence. Dailey’s argument is thus without merit.
Dailey finally argues that because he was sentenced to two years’
probation under the supervision of the department of correctional services,
“[t]here is no need for the additional direct supervision by the district court.”
9
While we do not necessarily agree with that contention,6 we cannot ignore the
fact, even though it was not raised by Dailey, that the probationary portion of the
court’s order violates Iowa Code section 356.47.7
That provision provides,
A judge who sentences a person to the county jail . . . may
suspend any part of such sentence and place such person on
probation, upon such terms and conditions as the sentencing judge
may direct, after such person has served that part of the person’s
sentence which was not suspended.
Iowa Code § 356.47 (emphasis added). Our supreme court has approved split
sentences of incarceration and probation under this provision where the
probation begins after the term of incarceration has been served. See Steuk,
368 N.W.2d at 172; State v. Erickson, 362 N.W.2d 528, 534 (Iowa 1985); but see
State v. Tensley, 334 N.W.2d 764, 765 (Iowa 1983) (holding sentence was illegal
where district court ordered defendant to serve time in jail as a condition of
probation); accord State v. Harris, 251 N.W.2d 483, 484 (Iowa 1977).
6
Direct judicial supervision of defendants occurs regularly in our state’s drug court
programs, which are comprised of
local coalitions of judges, prosecutors, attorneys, substance abuse
treatment professionals, probation officers, community-based service
organizations, law enforcement officials, and others who use the coercive
power of the court to force abstinence from drugs and alter behavior of
substance-abusing offenders through the integration of substance abuse
treatment, sanctions, and incentives with case processing and the
placement of nonviolent drug-involved defendants in judicially supervised
visitation programs.
State v. Thomas, 659 N.W.2d 217, 218 n.1 (Iowa 2003) (citation and quotation omitted).
A similar philosophy underlies the staggered sentencing system. See generally Carlisle,
25 Hamline J. Pub. L. & Pol’y at 96-103; Tampoya, 111 W. Va. L. Rev. at 305-08;
Brunson & Knighten at 19-21.
7
Because Dailey was sentenced to less than one year of incarceration, Iowa Code
section 903.4 requires that he be confined in a county jail. See also Iowa Code §
321J.2(2)(a), (b) (mandating “[i]mprisonment in the county jail for not less than forty-eight
hours” for OWI first offense and imprisonment in “county jail or community-based
correctional facility” for not less than seven days for OWI second offense). The dictates
of Iowa Code chapter 356 governing jails and municipal holding facilities are thus
applicable here.
10
In this case, the district court placed Dailey on two years’ probation “from
the date of [its sentencing] order.” The court also ordered him to serve periods of
incarceration within that two-year period. Though the court did not make Dailey’s
jail time a condition of his probation as disapproved by our supreme court in
Tensley and Harris, Dailey was sentenced to simultaneous incarceration and
probation.
Such a sentence does not appear to be permitted under section
356.47, which specifies that a person may not be placed on probation until after
incarceration.
See State v. Stephenson, 608 N.W.2d 778, 784 (Iowa 2000)
(“[P]robation is to be served in lieu of, not in addition to, incarceration.”); Tensley,
334 N.W.2d at 764 (“[G]ranting probation and imposing confinement are mutually
exclusive, except where expressly authorized by statute.”). We accordingly find
Dailey’s sentence is void and must be vacated.
IV. Conclusion.
Although we do not wish to discourage district courts from developing
innovative sentences that “provide maximum opportunity for the rehabilitation of
the defendant, and for the protection of the community from further offenses by
the defendant and others,” Iowa Code § 901.5, such sentences must be within
statutory limits. Because the staggered sentence imposed by the court included
a concomitant term of probation not authorized by Iowa Code section 356.47, we
conclude it was illegal.
We therefore vacate the sentence and remand for
resentencing.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
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