State of Iowa v. Timothy Alvin Newton

IN THE COURT OF APPEALS OF IOWA

No. 20-0517
Filed June 16, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TIMOTHY ALVIN NEWTON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Ringgold County, Dustria A. Relph,

Judge.

Timothy Newton appeals his convictions for operating while intoxicated,

second offense, and driving while barred. AFFIRMED.

Jesse A. Macro, Jr. of Macro & Kozlowski, LLP, West Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2

BOWER, Chief Judge.

Timothy Newton was found guilty of operating while intoxicated (OWI),

second offense, and child endangerment after a jury trial in 2016. State v. Newton,

No. 16-1525, 2018 WL 739251, at *3 (Iowa Ct. App. Feb. 7, 2018) (Newton I).1 On

appeal, this court reversed the conviction for second-offense OWI, finding the court

had not engaged in a proper colloquy with Newton before he stipulated to a prior

OWI conviction.2 Id. at *6. On further review, our supreme court affirmed the

reversal of the second-offense OWI conviction and remanded for further

proceedings. State v. Newton, 929 N.W.2d 250, 259 (Iowa 2019) (Newton II).

On November 12, 2019, Newton pleaded guilty to OWI, second offense.

That same date, he also pleaded guilty to a new charge of driving while barred.

Newton was ordered to “submit to an evaluation for substance abuse and file a

copy” of the evaluation with the clerk of court before sentencing, which was

scheduled for January 13, 2020.

On January 11, Newton filed a motion for an updated presentence

investigation (PSI) report and to continue sentencing.3 The district court granted

the continuance until January 27 but denied the motion for an updated PSI noting,

“The defendant will be provided an opportunity to present any additions or

corrections to the previously submitted report at the time of sentencing.”

1 The convictions arise from conduct that occurred on September 3, 2014.
Newton I, 2018 WL 739251, at *1.
2 Newton’s conviction for child endangerment was affirmed. Newton I, 2018 WL

739251, at *1 n.1 (noting Newton did not challenge the child-endangerment
conviction).
3 A PSI had been completed and a report submitted in September 2016.
3

On January 27, the court ordered mittimus issue on the child-endangerment

conviction, and Newton began serving his two-year indeterminate sentence.

After protracted procedural delays, an attorney substitution, and the court

finding Newton in contempt, the sentencing hearing for the second-offense OWI

and driving-while-barred convictions was held on March 23. During the sentencing

hearing a recess was taken to allow Newton to review the PSI report with his

attorney. The defense did not object to the court using the information contained

in the PSI report and offered no additions or corrections. The State asked the court

to take judicial notice of two additional convictions since the 2016 PSI was

completed.

The defense asked the court to consider granting probation on the two

outstanding convictions:

I know that seems like an odd paradigm, but I think in this case and
given the current environment it would provide Mr. Newton some
term of incarceration as he’s already experienced and will likely
experience for a little while future—in the future.
But then placing him on probation on the other counts then
provides a clearer path for him to exit the prison environment into the
community where he would have, I think based on my experience, a
little more to—a little more resources to avail himself of on the
probation side versus the parole side, and that’s—that’s just been my
experience over the years, that the probation side of things seems to
do a better job of helping people get back on their feet.

The prosecutor recommended imposition of consecutive terms of

incarceration.

Your Honor, under of the plea agreement in this case, the State’s
recommendation is that the defendant receive periods of
incarceration on the remaining two charges; on Count I, that he
receive an indeterminate two-year prison term, and the State is
recommending that be run concurrent to Count II in the OWI case.
Then in relation to the driving while barred case, the State is
requesting the defendant be ordered to serve an indeterminate term
4

not exceed two years on that charge and that sentence be served
consecutive to the defendant’s sentences on the OWI charge.
The reasoning—the reason for the State’s argument for the
consecutive time is the offense was committed while the defendant
was on release at that point on posting appeal bond on the pending
case. So it was—the crime was committed while the defendant was
in essence awaiting imposition of sentence in this case.
....
Also, Your Honor, I would note that, again, coronavirus
issues, that’s a legitimate consideration at this point in time
concerning sentencing. It’s not a factor. The supreme court has
recognized or identified even in the most recent supervisory orders
that have been issued, in that the issue the parole board has full
authority to deal with.
In terms of the defendant receiving probation, Department of
Corrections services whether those are any greater in a probation
context or not, I don’t know, but I would say the defendant has
outstanding probation in Decatur County, so I would assume he’ll be
getting full benefit of any probationary services available through that
case when he gets out. Between what parole services provide and
what probation services can provide, he should be able to receive
that through that Decatur County charge.

The district court imposed a two-year indeterminate sentence on the OWI

charge, which would be served concurrently with the child-endangerment charge

Newton was then serving. In the written judgment, the court observed: “The

defendant has failed to obtain and/or file a copy of the defendant’s substance

abuse evaluation; however, because of the defendant’s sentence of incarceration

set forth below, the court waives the requirement that said evaluation be obtained

prior to the pronouncement of sentence . . . .” Newton was ordered to be evaluated

for substance abuse during his incarceration. The court also imposed a two-year

indeterminate sentence on the driving-while-barred charge to be served

consecutive to the others.

Newton appeals. With respect to the sentence imposed on the OWI

conviction, Newton contends the court erred in failing to ensure a substance-abuse
5

evaluation was obtained prior to sentencing. As for the sentence imposed upon

the driving-while-barred sentence, Newton contends the court abused its

discretion in denying his motion for an updated PSI.

“Our review of a sentence imposed in a criminal case is for correction of

errors at law.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not

reverse a sentence unless there is “an abuse of discretion or some defect in the

sentencing procedure.” Id.

Pursuant to Iowa Code section 321J.3, where a defendant is
convicted of a second or subsequent OWI offense, the district court
is required to order the preparation of a substance abuse evaluation
prior to sentencing. We have previously recognized two exceptions
to the requirement: (1) when the court receives the substantial
equivalent of a substance abuse evaluation; and (2) when the public
interest in securing an evaluation has been fully served.

State v. Breese, 581 N.W.2d 631, 632 (Iowa 1998). The Breese court determined

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.” Id. The exception is applicable

here.

Newton was ordered to complete a substance-abuse evaluation on

November 12, 2019. A number of continuances were granted in these

proceedings. Newton did not complete a substance-abuse evaluation before

mittimus issued on the child-endangerment charge in January 2020. The failure

to obtain a substance-abuse evaluation prior to sentencing is not grounds for

reversal under the circumstances of this case.

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
6

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.

Id. (internal citation omitted).

In its sentencing order, the court noted the department of corrections could

determine whether placement in the OWI Continuum Program was appropriate

and ordered Newton to obtain a substance-abuse evaluation. We find no

prejudicial error in the court’s waiver of a presentence substance-abuse

evaluation.

Nor did the district court abuse its discretion in denying the request for an

updated PSI.4 The defense did not object to the court using the information

contained in the PSI report and offered no additions or corrections. We affirm.

AFFIRMED.

4 Driving while barred is an aggravated misdemeanor. Iowa Code § 321.561
(2019). “[A] criminal defendant who pleaded guilty to an aggravated misdemeanor
cannot demand a PSI as a matter of right; instead, one can be prepared at the
discretion of the district court.” State v. Robinson, 841 N.W.2d 615, 617 (Iowa Ct.
App. 2013).