January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
REED NATHAN BARCLAY, Defendant-Appellant.
from the Iowa District Court for Cerro Gordo County, James M.
defendant appeals his indeterminate fifteen-year prison
sentence for delivery of methamphetamine as a habitual
A. Reindl of Reindl Law Firm, Mason City, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
Barclay alleges the sentencing court discriminated against
him because he suffers from mental illness. Barclay seeks to
have his prison sentence vacated and to be admitted into drug
court. Because Barclay's claim of discrimination does not
lead to his desired remedy, we affirm his judgment and
December 2015, the State charged Barclay by trial information
with two counts of delivery of methamphetamine, class
"C" felonies, in violation of Iowa Code sections
124.401 (1)(c)(6) and 124.413 (2015), as a second and
subsequent offender under section 124.411, and as a habitual
offender under sections 902.8 and 902.9(1)(c). In February
2016, Barclay initialed and signed a written plea of guilty
to one of the two delivery counts. As part of the agreement,
the State agreed to dismiss the second count and to recommend
a prison term not to exceed forty-five years, all suspended;
five years' probation; and placement in drug court.
Second Judicial District Department of Correctional Services
completed a presentence investigation (PSI) in April 2016.
Thirty-four-year-old Barclay reported to the investigator
that he had been "diagnosed with schizoaffective
disorder, ADHD, and intermittent explosive disorder and was
in special education and behavior disorder classes while in
school." He dropped out of high school after the
eleventh grade but received his GED from North Iowa Area
Community College in 1999.
also reported being a daily user of methamphetamine and was
diagnosed with a severe amphetamine-type substance-abuse
disorder. He received in-patient treatment at Prairie Ridge
Integrated Behavioral Healthcare in Mason City in 2015, but
he left the program in December of that year and was
hospitalized at the Mercy Medical Center psychiatric unit.
According to the PSI, Prairie Ridge staff evaluated Barclay
in February 2016 as a result of a drug-court referral. The
PSI reported the drug-court team decided not to accept
Barclay into the drug-court program. The PSI recommended
Barclay be sentenced to a prison sentence not to exceed
forty-five years, reasoning: "The defendant's
criminogenic needs require a higher level of supervision than
what community based supervision can provide."
was aware of the drug-court team's decision at the March
2016 guilty-plea hearing. His counsel explained: "Mr.
Barclay has been evaluated for drug court and they won't
accept him at this time. They might reevaluate him over the
term of his probation, but right now they believe it's a
little too much anxiety for him to participate in that right
off the bat." The plea-taking court responded: "So
the screening for drug court has been done, and that's
not an option at this time. So I'm assuming then
we're just going to jointly recommend probation to the
Department of Correctional Services without involvement in
drug court?" Defense counsel agreed that was accurate.
But the prosecutor said he still intended to recommend drug
court, saying "It's still . . . the court's
discretion whether they allow him in. So since that's what I
agreed to, that's what I'm going to recommend."
Barclay personally affirmed he understood the status of the
drug-court recommendation and, nevertheless, went ahead with
his guilty plea.
April 2016 sentencing hearing, the State recommended "a
forty-five-year prison sentence with the one-third mandatory
minimum imposed but that sentence be suspended with a
recommendation for placement in the Cerro Gordo County drug
court." The prosecutor continued:
[I]n support of my recommendation, I do believe [Barclay]
does have a lengthy drug history and criminal history that
would suggest that he does need . . . the drug court and its
specialized training in order to be successful in becoming a
productive member of our society. I do believe a lot of his
offenses are drug-induced or drug-related, so the State feels
that the drug court would be in his best interest and will
leave it for the court's determination.
counsel asked the court to accept the State's
recommendation but also asked the court to sentence Barclay
to "something other than forty-five years" as
recommended by the PSI. Defense counsel revisited the
Again, Mr. Barclay did apply for the drug court. Initially he
was rejected. . . . I'm not sure the reason, but I know
that they had reached capacity or very close to it at the
time that Mr. Barclay had applied. Certainly during his
probation supervision if they reevaluated him, made a
determination that he was appropriate for drug court-he's
nodding his head indicating to you, your Honor, that he would
like to participate in that. He's heard some very good
things about that.
allocution, Barclay shared his "plan for success"
in pursuing drug treatment in the community so that he could
be a "contributing member of society" if he was not
accepted into drug court.
imposing sentence, the judge told Barclay he was considering
the statutory factors, including Barclay's age, prior
record, employment circumstances, nature of the offense, his
attitude, and the information and recommendations in the PSI.
The court also assured Barclay he was seriously considered
for participation in drug court:
I oversee drug court, and for multiple reasons you were
deemed not acceptable for the drug court program. And I'm
not required to explain why somebody gets or doesn't get
into drug court, but I want to assure you and everybody
that's here supporting you that we don't take those
applications lightly and we really looked hard at your
situation and talked a lot about it.
court further addressed Barclay's combination of
substance-abuse and mental-health issues.
One of the problems that we have that you present for us is a
societal problem, and it bothers me. I want you to know that
mental illness is a topic that is very close to me, and our
society just really has failed miserably in providing the
resources we need to properly deal with mental illness. And
then when you combine that with serious drug addiction, it
just compounds the problem. And, you know, you are a classic
dual diagnosis defendant as you sit here. I know you know
this. I'm pretty sure the people here for you know this.
Your record is abysmal. It's really bad. And that's
why you sit here facing this charge as a habitual offender.
court then offered the following explanation for imposing an
indeterminate fifteen-year term of incarceration:
From my vantage point the only way probation would work for
you is in some type of a specialty court, which we just
don't have the resources to handle a person in your
situation. And, you know, some days are just less fun than
others for my job, Mr. Barclay, but I think the
recommendation from the Department of Correctional Services
is appropriate and we're going to impose the prison
sentence. However, . . . I am not going to impose the triple
sentence on you. I believe that the [fifteen] years with
five-year mandatory minimum will be sufficient to obtain the
appeals, contesting only the sentence imposed. He contends
the district court "discriminated" against him
"at sentencing because of his disability denying him
equal protection under the law and violating the Americans
with Disabilities Act as Amended."
Scope and Standards of Review
standard of review depends on the nature of the challenge to
the sentence. See State v. Seats, 865 N.W.2d 545,
552-53 (Iowa 2015). To the extent Barclay raises an
equal-protection claim, we review the sentence de novo.
See id. at 553. But we review Barclay's
nonconstitutional claim invoking the Americans with
Disabilities Act Amendments Act of 2008 (ADA) for the
correction of legal error. See id. In general, we
review a sentencing decision for an abuse of discretion.
See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016).
"A district court abuses its discretion when it
exercises its discretion on grounds clearly untenable or to
an extent clearly unreasonable." Id.
argues he was denied entry into drug court "because of
his mental illness, and his sentence of incarceration, rather
than accommodating him in the drug court program,
discriminated against him based upon his disability." He
asserts: "If drug court is a program that is offered to
drug users, it was illegal for the trial court to deny drug
court to Mr. Barclay because he is disabled and a drug
user." Barclay contends the sentencing court's
decision violated the ADA and "his right to equal
protection of the law guaranteed by the Fourteenth Amendment
to the Constitution." Barclay cites Pennsylvania
Department of Corrections v. Yeskey, 524 U.S. 206, 209
(1998), for the proposition that correctional services,
programs, and activities shall not be denied as the result of
State counters that Barclay has chosen the wrong forum for
his disability complaint. The State relies on the analysis
from a similar sentencing challenge before a Virginia
appellate court, quoting: "Nowhere in the ADA does it
appear that Congress intended the Act to provide rights that
could be asserted in a criminal proceeding . . . ."
See Wilson v. Commonwealth, 522 S.E.2d 385, 387 (Va.
Ct. App. 1999). The Virginia court rejected Wilson's
argument that Yeskey governed the sentencing
court's order of incarceration, denying her admission to
a detention center program due to her mental health
condition. See id. (emphasizing Yeskey
involved a civil suit filed against a department of
corrections in accord with ADA provisions).
supreme court expressed a similarly narrow view of
Yeskey's holding when rejecting a claim that a
sentencing court erred in failing to consider the ADA in
mitigation of punishment or in deciding the appropriate
placement among sentencing options. See State v.
Jacobs, 644 N.W.2d 695, 697 (Iowa 2001). The court
opined: "Our review of that decision convinces us that
it only mandates that specific services otherwise provided to
prison inmates shall not be denied as the result of a
disability. The defendant here has been denied no service
because of his disability." Id. The
Jacobs court did not address the applicability of
the ADA in a criminal proceeding because it found the
"defendant's disability, if any, did not play any
role in [the sentencing] decision." See id.
contends his case differs from Jacobs because the
sentencing judge, who happened to belong to the drug-court
team, suggested Barclay's mental illness was a factor in
the team turning down his application. In turn, the court
denied Barclay's request for probation, believing Barclay
would not succeed outside of prison without drug-court
supervision. The State agrees the drug-court rejection
influenced the court's decision to sentence Barclay to
prison but disagrees that the drug-court team's reasons
for rejecting Barclay's application are apparent from
canvassing the parties' arguments, we are not persuaded
Barclay is entitled to relief from his prison sentence under
the ADA. Congress enacted the ADA to eliminate discrimination
against people with disabilities and to create causes of
action for qualified people who have faced discrimination.
See 42 U.S.C. § 12101(b). Congress amended the
ADA in 2008 to reject several opinions of the United States
Supreme Court that had "the effect of restricting the
meaning and application of the definition of
disability." See Goodpaster v. Schwan's Home
Serv., Inc., 849 N.W.2d 1, 8 (Iowa 2014) (quoting
statement from then Iowa Senator Tom Harkin). But Barclay has
not pointed us to any precedent from Iowa or other
jurisdictions where a criminal defendant has relied on the
ADA to successfully attack a sentencing court's exercise
of discretion, and we have found none.
a successful showing of discrimination under the ADA requires
a plaintiff to show he or she has a physical or mental
impairment that "substantially limits one or more major
life activities." See Sanchez v. Vilsack, 695
F.3d 1174, 1178 (10th Cir. 2012) (quoting 42 U.S.C. §
12102(1)(A)). "[I]t is not sufficient for a plaintiff to
identify an impairment and leave the court to infer that it
results in substantial limitations to a major life
activity." Id. Because Barclay did not
challenge his exclusion from drug court before or after
entering his guilty plea, we have no record regarding his
mental impairment, other than the information he provided to
the PSI preparer. And we have no showing the mental illness
diagnoses listed in the PSI posed a substantial limit on a
major life activity for Barclay. Accordingly, we cannot find
the ADA applies to this case. See generally Evans v.
State, 667 S.E.2d 183, 186 (Ga.Ct.App. 2008) (rejecting
challenge by criminal defendant found ineligible for drug
court where defendant "neither argued nor
demonstrated" his disabilities affected a major life
is correct in asserting an illegal-sentence claim stands as
an exception to the rules of error preservation. See
State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009)
(holding claim that sentence was illegal because it violated
constitutional provision could be raised for first time on
appeal). But that error-preservation exception does not
absolve Barclay from showing he is a "qualified
individual with a disability, " who meets the essential
eligibility requirements for participation in the Cerro Gordo
County drug court, to prove an ADA violation. See 42
U.S.C. § 12131(2). Even if a criminal case could serve
as an appropriate forum for an ADA challenge, Barclay did not
lay the proper groundwork here.
the State contends it was permissible, in fact mandatory, for
the district court to consider the impact of Barclay's
mental health issues on his need for rehabilitation and the
need for community protection. See Iowa Code §
907.5(1)(e) (directing court to consider "[t]he
defendant's mental health and substance abuse history and
treatment options available in the community and the
correctional system" before suspending sentence). We
agree and find no abuse of discretion in the court's
sentencing decision. See State v. Wright, 340 N.W.2d
590, 593 (Iowa 1983) (holding "right of an individual
judge to balance the relevant factors in determining an
appropriate sentence inheres in the discretionary
 Our record does not contain any
information about the application and approval process for
the Cerro Gordo County Drug Court. Thus, it is not clear that
the district court did have unilateral discretion to accept a
defendant into the program.
 Although Barclay mentions equal
protection in his appellate brief, he does not include any
argument in support of a constitutional claim. Accordingly,
the equal-protection issue is not properly before us.
See Baker v. City of Iowa City, 750 N.W.2d 93,
102-03 (Iowa 2008) (holding a conclusory statement
without argument waives an issue).