from the Iowa District Court for Polk County, Carol L.
Coppola, District Associate Judge.
Shelledy appeals the district court's denial of his
motion to continue sentencing and the sentence imposed.
Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
Shelledy appeals his sentence for operating while
intoxicated, third offense. Shelledy claims the court should
have continued his sentencing hearing until his inpatient
treatment program was complete, and the court erred by
imposing a harsher sentence than recommended in his
presentence investigation report (PSI). We find the court
acted within its discretion in denying the motion to continue
the sentencing hearing and in imposing sentence.
Background Facts & Proceedings
November 7, 2017, Shelledy was arrested after he was
witnessed driving into a convenience store parking lot while
inebriated. On November 14, the State charged Shelledy with
operating while intoxicated (OWI), third offense, in
violation of Iowa Code section 321J.2 (2017), a class
"D" felony; and driving while his license was
revoked, in violation of section 321J.21, a serious
misdemeanor. On March 15, 2018, Shelledy pleaded guilty to
the OWI charge pursuant to a plea agreement, and the State
agreed to dismiss the driving while revoked charge. The plea
agreement did not specify sentencing recommendations.
Sentencing was set for May 14.
obtained three substance-abuse evaluations. The first, in
December 2017, recommended intensive outpatient treatment for
alcohol abuse. Shelledy was referred to outpatient treatment
in his home state of Missouri but did not participate,
instead participating in Alcoholics Anonymous (AA) classes as
advised by his attorney. An evaluation was performed in March
in his home state, but he moved to Iowa to help his mother
and obtained an updated Iowa evaluation in April 2018; this
last evaluation recommended inpatient residential treatment.
Shelledy was added to a waitlist at an inpatient program in
Iowa. Shelledy has twice before completed the Iowa Department
of Corrections's (DOC) OWI programming.
4, the DOC filed Shelledy's PSI. The PSI stated
incarceration would be an appropriate sentence but
recommended the statutory minimum of thirty days in jail with
the remaining sentence suspended; the DOC's
recommendation was based on his current employment,
involvement in AA, and positive social support. The PSI also
recommended completion of a substance-abuse treatment
program. The PSI noted this was Shelledy's sixth OWI
conviction, his third within twelve years, and that he had
been discharged from his most recent OWI parole in October
10, after receiving the PSI, Shelledy filed a motion to
continue the sentencing hearing to September so he could
complete an inpatient treatment program, which he would begin
in late July. He then amended the motion to move sentencing
to July as he could enter the inpatient program in late May.
Time spent in residential treatment, if it qualified under
statute, might have been credited against the thirty-day
mandatory minimum for Shelledy's sentence. The court
denied the motion, finding Shelledy had "ample time to
sentencing, Shelledy requested the statutory sentence,
suspended except for the minimum thirty-days in jail, and
inpatient treatment credited toward his jail term. The State
recommended sending Shelledy to prison. The court sentenced
Shelledy to an indeterminate term of imprisonment not to
exceed five years. Shelledy appeals.