Opinion
No. 5-113 / 04-0575
Filed February 24, 2005
Appeal from the Iowa District Court for Polk County, William A. Price, Judge.
Gregory Winters appeals the sentence entered following his guilty plea to operating while intoxicated, second offense. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Romonda D. Belcher, Assistant County Attorney, for appellee-State.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Gregory Winters appeals the sentence entered by the district court following his guilty plea to operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2(2)(b) (2003). Specifically, Winters avers the district court abused its sentencing discretion by ordering him to complete sex offender treatment and provide a DNA sample. We affirm in part and reverse in part.
I. Background Facts Proceedings.
On December 12, 2003, the State charged Winters by trial information with operating while intoxicated, third offense. Winters pled guilty to the amended charge of operating while intoxicated, second offense. The district court sentenced him to two years of incarceration, all of which except for thirty days was suspended. Additionally, the court placed Winters on probation for two years. The presentence investigation (PSI) report revealed Winters had been previously convicted of third-degree sexual abuse in 1993 and failure to register as a sex offender in 1998. Although Winters had previously completed sex offender treatment programs, the PSI report recommended Winters be placed in a sex offender aftercare program. This recommendation was based in part on the results of Winters's psychological evaluation. As part of this evaluation, Winters was rated on two different psychosexual assessments designed to estimate the probability of sexual environment recidivism. Winters's risk category was assessed as "medium-high" on the Static 99 assessment and "low" on the Sexual Offender Need Assessment Rating (SONAR) evaluation. Based on this recommendation, the district court ordered him to submit to DNA profiling and complete sex offender treatment as conditions of his probation. Winters appeals.
There is some discrepancy in the PSI report as to what Winters's assessment was on the SONAR evaluation. The PSI report itself indicates Winters's risk category was characterized as "medium-high." However, a letter issued by the clinical social worker that administered the assessment stated Winters's risk was characterized as "low."
II. Standard of Review.
We review the district court's sentence for the correction of errors at law. Iowa R. App. P. 6.4. A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as consideration of impermissible facts. State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Sentencing decisions of the district court are cloaked with a strong presumption in their favor, and an abuse of discretion will not be found unless the defendant shows such discretion was exercised for reasons clearly untenable or to an extent clearly unreasonable. Id. III. The Merits.
Winters challenges the sentencing court's authority to order him to attend sex offender treatment and submit to DNA profiling as conditions of his probation. Winters contends these conditions are unreasonable because he was convicted of second-offense OWI, not a sexually-based offense.
Initially, we acknowledge Winters may not have preserved error on this issue. Based on the transcript of the sentencing proceedings, it appears the parties had previously reached an agreement with regard to Winters's sentence. During the sentencing hearing the prosecutor recommended Winters receive "the sentence that the parties ha[d] previously discussed." Instead of the suspended sentence suggested in the PSI report, the State requested Winters be incarcerated for two years, all of but thirty days suspended, and that he pay a $1500 fine. In addition, the State recommended Winters be placed on probation and that he be required to follow through with sex abuse treatment and aftercare. Following the State's recommendation, Winters's trial counsel indicated Winters had "reviewed the document and signed off on the sentence." This colloquy reasonably led the court to believe that Winters had agreed to the State's recommended terms. Because he did not object at the time of sentencing, it is possible Winters did not preserve error. However, notwithstanding this argument, we will proceed to address the merits of Winters's claims.
We reach this conclusion only with respect to the sex offender treatment portion of the sentence. It is clear Winters preserved error on the DNA profiling portion of the sentence. DNA profiling was not recommended by the State, nor was it included in the PSI recommendation.
A. Sexual Offender Treatment Program.
Admittedly, the court-imposed condition of requiring Winters to attend sexual offender treatment bears little relationship to the crime of OWI, second offense. However, in Iowa, probationers are subject to any reasonable conditions the court may impose to "promote rehabilitation of the defendant or protection of the community." Iowa Code § 907.6. When appropriate to achieve the goals of probation, a sentencing court has the power to impose "innovative probationary condition[s]." State v. Akers, 435 N.W.2d 332, 335 (Iowa 1989) (citing State v. Rogers, 251 N.W.2d 239, 241-46 (Iowa 1977)).
In accordance with the view expressed in the Iowa Code, other jurisdictions similarly hold that a condition of probation, even if unrelated to the current offense, does not constitute an abuse of a sentencing court's discretion so long as it is reasonably related to the future criminality of the defendant and serves the statutory ends of probation. See, e.g., People v. Lent, 124 Cal. Rptr. 905, 908 (1975); Biller v. State, 618 So.2d 734, 734-35 (Fla. 1993); State v. Taylor, 717 P.2d 64, 72-73 (N.M.Ct.App. 1986); State v. Jones, 550 N.E.2d 469, 470 (Ohio 1990); Leblanc v. State, 908 S.W.2d 573, 574-75 (Tex.Ct.App. 1995); see also Sobota v. Williard, 427 P.2d 758, 759 (Or. 1967) (stating the reasonableness of a condition of probation is determined by how well it serves the goals of probation); State v. Brown, 497 N.W.2d 463, 464 (Wis.Ct.App. 1993) (same) (citing Huggett v. State, 798, 266 N.W.2d 403, 407 (Wis. 1978)).
There is no question it is in the best interest of the community to require a previously convicted sex offender to enroll in a sexual offender treatment program. This is true especially in light of the recommendation and findings of the PSI report, which indicated Winters was at risk to reoffend and would benefit from additional treatment. The district court properly considered the information contained in the PSI report and reasonably concluded the condition served the two goals of probation — rehabilitation of the defendant and protection of the community. See Iowa Code § 901.5 (allowing a court to consider all pertinent information, including the PSI report, to determine what sentence will provide the maximum opportunity for rehabilitation of the defendant and protect the community from further offenses). Further, the reasonableness of the district court's disposition is reinforced by the fact Winters was ordered to undergo substance abuse treatment following his conviction for third-degree sexual abuse. This previous disposition, coupled with the circumstances of Winters's current offense, indicates a strong nexus between substance abuse and Winters's inability to conform his conduct to social norms. Consequently, we cannot conclude it was an abuse of discretion to order Winters to attend sexual offender treatment as a condition of his probation.
B. DNA Profiling.
The district court also required Winters to submit to DNA profiling as a special condition of his probation. In Iowa, mandatory DNA profiling is only required when a defendant is convicted of a qualifying offense. See Iowa Code § 13.10 (listing the qualifying offenses); see also Iowa Admin. Code r. 61-8.2(13) (same). Although driving while intoxicated is not among the list of offenses that can trigger mandatory DNA profiling, the district court had authority to order Winters to submit a DNA sample pursuant to section 901.5(8A) ( b). This section permits a court to order a defendant to submit a physical specimen for DNA profiling in all other cases "if appropriate." Iowa Code § 901.5(8A) ( b). In assessing the appropriateness of ordering DNA profiling, "the court shall consider the deterrent effect of DNA profiling, the likelihood of repeated offenses by the defendant, and the seriousness of the offense." Id.
Although we acknowledge the district court had the authority to order Winters to submit a DNA sample, applying the above factors to his case, we conclude it was not appropriate to do so. Initially, we note Winters was convicted of second-offense OWI. The deterrent effect of DNA profiling would be insignificant for this particular crime. In addition, with respect to Winters's previous conviction, it has been over twelve years since he was convicted of third-degree sexual abuse. Although Winters's psychological evaluation indicated he could potentially be at risk to reoffend, we conclude this potential risk will be sufficiently allayed by requiring him to enroll in a sex offender aftercare program as a condition of his current probation. Consequently, we conclude the district court improperly ordered Winters to submit a physical specimen for DNA profiling.
Notably, neither the PSI report, nor the State recommended that Winters be ordered to submit a physical specimen for DNA profiling as part of his sentence.
Where a sentence imposed is severable, the court may strike the invalid part without disturbing the rest. State v. Koenighain, 356 N.W.2d 237, 239 (Iowa Ct.App. 1984). In this case, we determine it is possible to sever the valid portion of Winters's sentence from the invalid portion. Therefore, we only reverse the part of the sentence that improperly ordered Winters to submit to DNA profiling as a special condition of probation. We affirm the remainder of Winters's sentence.