IN THE COURT OF APPEALS OF IOWA
No. 13-1736 Filed June 25, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
JACOB DOUGLAS FESKO, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
The defendant appeals the sentence imposed following his plea of guilty.
AFFIRMED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Carlyle D. Dalen, County Attorney, and Rachel A. Ginbey. Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ. 2
MCDONALD, J.
Defendant Jacob Fesko appeals the sentence imposed following his plea
of guilty to the offense of operating while under the influence (“OWI”), third or
subsequent offense, in violation of Iowa Code section 321J.2 (2011). Fesko
contends the district court erred in failing to order Fesko to undergo a substance
abuse evaluation prior to sentencing, as required by Iowa Code section
321J.2(7)(a). He also contends the district court abused its discretion by
imposing a sentence more severe than the jointly-recommended sentence
without first informing Fesko the court was not bound by the plea agreement. We
affirm.
I.
On March 4, 2013, Fesko pleaded guilty to the above-stated offense. The
district court set sentencing to occur on April 22, 2013, and ordered the Second
Judicial District Department of Correctional Services to prepare a presentence
investigation report (“PSI”). The district court also ordered Fesko to “undergo a
substance abuse evaluation at a licensed substance abuse agency of the
defendant’s selection” prior to the time of sentencing. There is nothing in the
record establishing Fesko completed the court-ordered substance abuse
evaluation. Fesko failed to appear for sentencing, and the district court issued a
bench warrant for his arrest. The matter finally came on for sentencing (and a
plea on another charge not material to this case) on November 1, 2013.
The Iowa Code requires “a court to order a substance abuse evaluation
prior to sentencing a defendant on a second or subsequent OWI conviction.” 3
State v. Weber, 545 N.W.2d 317, 318 (Iowa 1996). “One exception to this rule
occurs when the court receives the substantial equivalent of a substance abuse
evaluation . . . . We recognize another exception exists where . . . the public
interest in securing an evaluation has been fully served.” Id.
We conclude the sentencing court substantially complied with the statute.
The leading case is State v. Ludley, 465 N.W.2d 912 (Iowa Ct. App. 1990). In
that case, we concluded there was substantial compliance with the statute when
the PSI contained the same type of information as a substance abuse evaluation,
the PSI was made available to counsel and the court prior to sentencing, and the
sentencing court “obviously gave consideration to [the defendant’s] substance
abuse problems, as shown from the . . . court’s sentencing statements.” Ludley,
465 N.W.2d at 914. Similarly, in this case, the Department of Correctional
Services prepared a thorough PSI. The PSI provided the court with a significant
amount of information regarding Fesko’s substance abuse and treatment history.
The PSI reported Fesko entered into a Veterans Administration (“VA”) residential
treatment facility following the automobile accident giving rise to the instant
charge. The defendant discharged from that program on October 30, 2012,
continued with aftercare, and remained under the care of a psychiatrist at the
Mason City VA clinic. The PSI was made available to counsel, the defendant,
and the court prior to sentencing. Neither the State nor Fesko recommended any
changes to the PSI, and Fesko explicitly stated the court could rely on the PSI in
imposing sentence. As in Ludley, the district court was aware of and obviously
gave consideration to Fesko’s substance abuse and treatment history—Fesko 4
explicitly raised the issue during allocution, and the sentencing court discussed
the issue while pronouncing sentence.
We also conclude the second exception to the general rule applies here:
the public interest in securing an evaluation has been fully served. See Weber,
545 N.W.2d at 318. First, the district court in fact ordered Fesko to obtain a
substance abuse evaluation. Fesko simply failed to do so and then failed to
appear at sentencing. The public’s interest is better served by proceeding with
sentencing despite the defendant’s non-compliance:
While neither exception appears directly applicable here, we find the public interest exception embraces the circumstances of this case where the court did order the substance abuse evaluation in accordance with section 321J.3, but defendant did not cooperate with the order. We have explained that the public has an interest in the evaluation and possible treatment because it can benefit the public by aiding persons who, but for substance abuse, would make useful citizens who would pose no threat to society. However, the benefit of an evaluation must be balanced against the public interest in the operation of an efficient justice system. If sentencing cannot occur until a defendant ordered to undergo a substance abuse evaluation complies with the order, an uncooperative defendant could delay sentencing. Such a delay is against the public interest.
State v. Breese, 581 N.W.2d 631, 632 (Iowa 1998) (quotation marks and citation
omitted).
Second, no further public benefit could have been obtained by delaying
sentencing to prepare a substance abuse evaluation. See State v. Ruiter, 547
N.W.2d 226, 227 (Iowa 1996) (holding second exception was met where
defendant sought treatment and sentence contemplated treatment because “[n]o
further societal benefit could be obtained by ordering the district court to prepare
a substance abuse evaluation” under those circumstances). As in Ruiter, Fesko 5
was aware of his need for treatment and wanted treatment. In fact, Fesko was
already treating with the VA. The court was aware of Fesko’s need for treatment.
While the court sentenced Fesko to a term of incarceration not to exceed five
years with a mandatory minimum of thirty days, the sentence also contemplated
release to a residential facility to continue substance abuse treatment. The
judgment and sentencing order stated “the director of the department of
corrections may assign the defendant to an appropriate correctional facility until
there is sufficient space in a community residential facility.” During the
sentencing hearing, the sentencing court expressly affirmed its hope that Fesko
would continue treatment with the VA.
The failure to obtain a substance abuse evaluation prior to sentencing is
not grounds for reversal under the circumstances of this case. The sentencing
court had available to it the substantial equivalent of an evaluation. The failure to
obtain the evaluation was caused, at least in part, by the defendant’s non-
compliance with the court’s order.
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IN THE COURT OF APPEALS OF IOWA
No. 13-1736 Filed June 25, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
JACOB DOUGLAS FESKO, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
The defendant appeals the sentence imposed following his plea of guilty.
AFFIRMED.
Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Carlyle D. Dalen, County Attorney, and Rachel A. Ginbey. Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ. 2
MCDONALD, J.
Defendant Jacob Fesko appeals the sentence imposed following his plea
of guilty to the offense of operating while under the influence (“OWI”), third or
subsequent offense, in violation of Iowa Code section 321J.2 (2011). Fesko
contends the district court erred in failing to order Fesko to undergo a substance
abuse evaluation prior to sentencing, as required by Iowa Code section
321J.2(7)(a). He also contends the district court abused its discretion by
imposing a sentence more severe than the jointly-recommended sentence
without first informing Fesko the court was not bound by the plea agreement. We
affirm.
I.
On March 4, 2013, Fesko pleaded guilty to the above-stated offense. The
district court set sentencing to occur on April 22, 2013, and ordered the Second
Judicial District Department of Correctional Services to prepare a presentence
investigation report (“PSI”). The district court also ordered Fesko to “undergo a
substance abuse evaluation at a licensed substance abuse agency of the
defendant’s selection” prior to the time of sentencing. There is nothing in the
record establishing Fesko completed the court-ordered substance abuse
evaluation. Fesko failed to appear for sentencing, and the district court issued a
bench warrant for his arrest. The matter finally came on for sentencing (and a
plea on another charge not material to this case) on November 1, 2013.
The Iowa Code requires “a court to order a substance abuse evaluation
prior to sentencing a defendant on a second or subsequent OWI conviction.” 3
State v. Weber, 545 N.W.2d 317, 318 (Iowa 1996). “One exception to this rule
occurs when the court receives the substantial equivalent of a substance abuse
evaluation . . . . We recognize another exception exists where . . . the public
interest in securing an evaluation has been fully served.” Id.
We conclude the sentencing court substantially complied with the statute.
The leading case is State v. Ludley, 465 N.W.2d 912 (Iowa Ct. App. 1990). In
that case, we concluded there was substantial compliance with the statute when
the PSI contained the same type of information as a substance abuse evaluation,
the PSI was made available to counsel and the court prior to sentencing, and the
sentencing court “obviously gave consideration to [the defendant’s] substance
abuse problems, as shown from the . . . court’s sentencing statements.” Ludley,
465 N.W.2d at 914. Similarly, in this case, the Department of Correctional
Services prepared a thorough PSI. The PSI provided the court with a significant
amount of information regarding Fesko’s substance abuse and treatment history.
The PSI reported Fesko entered into a Veterans Administration (“VA”) residential
treatment facility following the automobile accident giving rise to the instant
charge. The defendant discharged from that program on October 30, 2012,
continued with aftercare, and remained under the care of a psychiatrist at the
Mason City VA clinic. The PSI was made available to counsel, the defendant,
and the court prior to sentencing. Neither the State nor Fesko recommended any
changes to the PSI, and Fesko explicitly stated the court could rely on the PSI in
imposing sentence. As in Ludley, the district court was aware of and obviously
gave consideration to Fesko’s substance abuse and treatment history—Fesko 4
explicitly raised the issue during allocution, and the sentencing court discussed
the issue while pronouncing sentence.
We also conclude the second exception to the general rule applies here:
the public interest in securing an evaluation has been fully served. See Weber,
545 N.W.2d at 318. First, the district court in fact ordered Fesko to obtain a
substance abuse evaluation. Fesko simply failed to do so and then failed to
appear at sentencing. The public’s interest is better served by proceeding with
sentencing despite the defendant’s non-compliance:
While neither exception appears directly applicable here, we find the public interest exception embraces the circumstances of this case where the court did order the substance abuse evaluation in accordance with section 321J.3, but defendant did not cooperate with the order. We have explained that the public has an interest in the evaluation and possible treatment because it can benefit the public by aiding persons who, but for substance abuse, would make useful citizens who would pose no threat to society. However, the benefit of an evaluation must be balanced against the public interest in the operation of an efficient justice system. If sentencing cannot occur until a defendant ordered to undergo a substance abuse evaluation complies with the order, an uncooperative defendant could delay sentencing. Such a delay is against the public interest.
State v. Breese, 581 N.W.2d 631, 632 (Iowa 1998) (quotation marks and citation
omitted).
Second, no further public benefit could have been obtained by delaying
sentencing to prepare a substance abuse evaluation. See State v. Ruiter, 547
N.W.2d 226, 227 (Iowa 1996) (holding second exception was met where
defendant sought treatment and sentence contemplated treatment because “[n]o
further societal benefit could be obtained by ordering the district court to prepare
a substance abuse evaluation” under those circumstances). As in Ruiter, Fesko 5
was aware of his need for treatment and wanted treatment. In fact, Fesko was
already treating with the VA. The court was aware of Fesko’s need for treatment.
While the court sentenced Fesko to a term of incarceration not to exceed five
years with a mandatory minimum of thirty days, the sentence also contemplated
release to a residential facility to continue substance abuse treatment. The
judgment and sentencing order stated “the director of the department of
corrections may assign the defendant to an appropriate correctional facility until
there is sufficient space in a community residential facility.” During the
sentencing hearing, the sentencing court expressly affirmed its hope that Fesko
would continue treatment with the VA.
The failure to obtain a substance abuse evaluation prior to sentencing is
not grounds for reversal under the circumstances of this case. The sentencing
court had available to it the substantial equivalent of an evaluation. The failure to
obtain the evaluation was caused, at least in part, by the defendant’s non-
compliance with the court’s order. Further, the purpose of obtaining a substance
abuse evaluation was satisfied where Fesko sought treatment and was treating,
the court was aware of the treatment or need for treatment, and the sentence
embodied those concerns.
II.
Fesko contends the sentencing court abused its discretion in declining to
follow the sentencing recommendation and request of the parties. The district
court is free to impose any sentence within the statutory maximum, and we will
not reverse the sentence absent an abuse of discretion. See State v. Floyd, 466 6
N.W.2d 919, 924 (Iowa Ct. App. 1990). To establish the court abused its
discretion, Fesko must show the sentencing court exercised its discretion “on
grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999). The sentence imposed is
allowed by statute. Fesko has not established any abuse of discretion.
Fesko also argues the sentencing court abused its discretion in not
advising Fesko the court was not bound by the plea agreement and in not
affording Fesko the right to stand on his plea or withdraw the same. There is no
indication in the transcript of the sentencing hearing that the plea was contingent
upon the sentencing court accepting the recommended sentence. Fesko’s
argument thus necessarily turns on the nature of the plea agreement (whether it
was conditional or not) and what the plea court told Fesko at the time Fesko
entered the plea. See State v. Barker, 476 N.W.2d 624, 626 (Iowa Ct. App.
1991) (stating “[i]f the plea bargain is conditioned on the court’s acceptance,” the
trial court “may defer its decision until it received the presentence report” or “[t]he
court may also inform the defendant it will not be bound by the plea agreement
and allow withdrawal of the plea”).
The plea court accepted Fesko’s guilty plea on March 4, 2013. There is
no written plea agreement in the record. There is a Court Reporter
Memorandum and Certificate in the record indicating the plea hearing was
reported. Fesko, however, has not ordered the transcript and provided it for our
review. We are unable to tell whether the plea was contingent upon the court
accepting and imposing the recommended sentence. We are unable to tell 7
whether Fesko was advised the court was not bound by the plea agreement and
nonetheless elected to stand on the plea. Quite simply, we are not at liberty to
speculate as to what occurred in front of the plea court. Fesko’s failure to
provide necessary record in support of his claim requires the claim be denied.
See State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995) (“It is a defendant’s
obligation to provide this court with a record affirmatively disclosing the error
relied upon. We conclude that, by voluntarily failing to provide such a record,
[defendant] has waived error on his claim.”).
III.
For the foregoing reasons, Fesko’s sentence is affirmed.