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State v. Kline

Court of Appeal of Iowa

June 26, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
BRIAN WAYNE KLINE, Defendant-Appellant.

Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, District Associate Judge.

A defendant appeals from an order revoking his deferred judgment and the resulting judgment and sentence entered on the underlying charge of third-degree burglary.

Shawn Smith, Ames, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Patrick Chambers, County Attorney, and Adria Kester, Assistant County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Potterfield, J., and Goodhue, S.J. [*]

GOODHUE, S.J.

Brian Wayne Kline appeals from an order revoking his deferred judgment and the resulting judgment and sentence entered on the underlying charge of third-degree burglary.

I. Background Facts and Proceedings

The defendant entered a plea of guilty on August 31, 2011, to the charge of third-degree burglary. The defendant was granted a deferred judgment on October 26, 2011. He was placed on probation subject to specific terms and conditions.

On December 7, 2011, an application to impose judgment accompanied by a report of violations was filed by the State. The two alleged violations were predicated on the defendant's commitments made as a part of the terms and conditions of his probation to "keep all appointments with and maintain contact as directed by my probation officer" and "live in a residence approved by my probation officer."

The defendant waived his right to counsel and a hearing commenced on January 18, 2012. At the hearing, the defendant acknowledged receipt of the report of violations, and the court proceeded to determine whether the defendant was admitting or denying the alleged violations. The court conducted a rather extensive colloquy with the defendant, and at the defendant's request permitted an interruption to allow the defendant to speak with the prosecution. After their conference the prosecutor stated it would be her recommendation the defendant's deferred judgment be revoked and a sentence imposed, but that probation continue. The court and prosecutor made it clear to the defendant that the prosecutor's recommendation would not be binding on the court.

The defendant admitted his failure to maintain contact with the probation officer, but attempted to excuse his failure by asserting he had maintained contact with his parole officer in Des Moines. The defendant had an incomplete and confusing explanation of the residence issue, but his explanation was short of an outright admission. The court was confused by the residence issue, and not completely comfortable with the defendant's admission of the contact issue as qualified by his explanations. The court specifically asked the defendant, "Again to clarify, do you admit that you willfully violated the terms of your probation by failing to keep appointments and maintaining contact with your probation officer as you were required to do?" The defendant answered, "Yes, sir."

The court found a violation of the probation agreement, revoked the deferred judgment, imposed a five-year sentence, suspended the sentence, and placed the defendant on probation for three years, subject to terms and conditions. The conditions imposed on the defendant required that he reside at a residential correctional facility until maximum benefits were received. The court continued its colloquy and advised the defendant he had no right to a direct appeal of the probation revocation, but did have the right to a direct appeal of the sentence imposed. The written order revoking probation and imposing sentence provided, "Defendant has no right to a direct appeal to the Iowa Supreme Court with respect to the decision to revoke Defendant's deferred judgment." The defendant's stay at the residential facility did not go well, and eventually his probation was revoked.

The defendant appeals from the revocation of his deferred judgment and the sentence imposed. The defendant contends that the State failed to establish that he violated the terms and conditions of his probation, and the court erred in not advising him that he ...


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