from the Iowa District Court for Cedar County, Stuart P.
defendant challenges the sentence imposed on his conviction
for theft in the second degree.
C. Smith, State Appellate Defender, (until his withdrawal),
and Brenda J. Gohr, Assistant Appellate Defender, for
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
Wilkinson was working as an administrator at the Cedar County
jail when he stole more than $1000 from funds paid by
inmates. He pleaded guilty to theft in the second degree and
sought a deferred judgment. Instead, the district court
imposed judgment, suspended the indeterminate five-year
sentence, and placed Wilkinson on supervised probation for
two years. Wilkinson appeals his sentence, asserting the
district court's consideration of the Iowa Risk Revised
(IRR) assessment violated his right to due process.
Wilkinson did not raise this issue in the district court, we
cannot reach it on direct appeal. See State v.
Guise, 921 N.W.2d 26, 29 (Iowa 2018); State v.
Gordon, 921 N.W.2d 19, 24 (Iowa 2018). He also faults
his attorney for not objecting to the use of the
risk-assessment tool at sentencing. We preserve that claim
for development in possible postconviction-relief
audit in 2016 discovered approximately $35, 000 missing from
the room-and-board and commissary accounts at the Cedar
County jail. Wilkinson unexpectedly left his job as jail
administrator in late December 2015. He initially told
investigators he kept the jail accounts "in good
order." But he eventually accepted a plea offer from the
State and admitted taking money from the accounts with the
intent to permanently deprive the county.
the plea agreement, the defense asked the court to defer
judgment on the felony theft conviction, pointing to
Wilkinson's minimal criminal record and his admission of
guilt. The State asked for a suspended sentence. The county
sheriff weighed in on the consequences for his former
employee, telling the court: "I would think giving him a
deferred judgment would give a very poor signal to the
presentence investigator also recommended a suspended
sentence and probation, and referenced its use of a
As a part of the [presentence investigation (PSI)] process,
the defendant was assessed using the Iowa Risk Revised (IRR).
The IRR is an assessment tool with a focus on prediction of
new violent and/or property crime and is used to assign
initial level of supervision in the community. The defendant
scored in the administrative category for future violence and the
administrative category for future victimization. The IRR
would further indicate the defendant would be supervised
initially at an administrative level of supervision should he
be supervised in the community.
sentencing hearing, defense counsel did not object to the
inclusion of the IRR in the PSI report. In accepting the
State's sentencing recommendation, the district court
referenced the risk assessment: "The PSI author, in
rating his propensity for future violence and future
victimization, rates him at the low end on the spectrum on
both of those matters. However, the PSI recommends probation,
not a deferred."
appeal, Wilkinson alleges the court's reliance on the IRR
violated his right to due process. See U.S. Const.
amend. XIV; Iowa Const. art. I, § 9. He specifically
claims the district court "was not provided with
sufficient cautions for and limitations of the risk
assessment tool to allow the court to consider the
results." As a back-up, he argues if we decide the due
process claim is not ...