State of Iowa v. David Hal Calvin

               IN THE SUPREME COURT OF IOWA
                              No. 12–0618

                         Filed November 1, 2013


STATE OF IOWA,

      Appellee,

vs.

DAVID HAL CALVIN,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Robert B.

Hanson, Judge.



      A criminal defendant alleges the district court imposed an illegal

sentence by not granting him credit for time served.     DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT SENTENCE

VACATED IN PART, AND CASE REMANDED WITH INSTRUCTIONS.


      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Teresa M. Baustian, Assistant

Attorney General, John P. Sarcone, County Attorney, and Jaki L.

Livingston, Assistant County Attorney, for appellee.
                                    2

APPEL, Justice.

      In this case, we consider whether a criminal defendant is entitled

to credit against a prison sentence for time spent prior to sentencing at

the Iowa Residential Treatment Center (IRTC) and for time spent in jail as

a result of drug court program violations.      The district court denied

credit. The defendant appealed, claiming the refusal to grant credit as

required by law resulted in an illegal sentence. We transferred the case

to the court of appeals.     The court of appeals held that while the

defendant was not entitled to credit for time served in jail for violations

while participating in the drug court program, he was entitled to credit

for time served at the IRTC. We granted further review. Upon further

review, we conclude the defendant is entitled to credit for time spent at

the IRTC and for time spent in jail as a result of drug court program

violations.

      I. Procedural and Factual Background.

      The State charged David Calvin with second-degree theft as a

habitual offender and second-degree harassment. Calvin entered a guilty

plea to the theft charge pursuant to North Carolina v. Alford, 400 U.S. 25,

91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), and agreed to enter the Polk

County drug court program, an intensive supervision program. Under

the plea agreement, Calvin and the State agreed to jointly recommend he

receive a suspended sentence if he successfully completed the program.

If Calvin failed to successfully complete the program, the parties agreed

Calvin would serve a prison sentence. The State also agreed to dismiss

the harassment charge and another case pending in Polk County. The

district court accepted Calvin’s Alford plea on March 24, 2011, ordered

him to remain in custody pending further court order, and ordered him

brought to drug court program registration the following day.
                                       3

      On March 25, Calvin signed an “Intensive Supervision Court

Release    Agreement   and   Order,”       an   “Intensive    Supervision   Court

Contract,” and an “Intensive Supervision Court Plea Agreement.”               All

three documents outlined possible sanctions for violations of the drug

court program, including jail time. The release agreement provided that

Calvin could be “placed in jail immediately” for violations “of any term of

[the] agreement.” The contract provided that if Calvin failed to follow “the

directives given [him],” he could be sanctioned with a “period of

incarceration as determined by the judge” and that Calvin could be

incarcerated for a failure to remain drug free.              The plea agreement

provided that “[s]erious violations that do not result in Defendant being

removed from the program may result in short term jail stays as a

penalty for breaking the rules.”    The plea agreement further provided

that Calvin could be immediately arrested and incarcerated if he “violated

the terms and conditions of Drug Court or [was] not making satisfactory

progress.” Finally, the release agreement contained a provision stating

Calvin may be required to participate in residential treatment prior to

release or to reside at a halfway house.

      On the same day Calvin executed these documents, the district

court entered an order requiring Calvin to participate in residential

treatment at the IRTC, which is part of the Mount Pleasant Mental

Health Institute. This order stated Calvin’s substance abuse evaluation

indicated a need for residential treatment. The order required the sheriff

to transport Calvin to the facility. It also provided that if Calvin “leaves

the treatment center at any time without an escort by the Polk County

Sheriff’s Office, the act of leaving shall be deemed an escape and

defendant may be prosecuted on a separate criminal violation for such

escape.”    It finally required Calvin to remain in the facility until
                                          4

discharge, at which time the order required the sheriff to transport

Calvin     back   to   the    Polk   County   jail   to   await   continuing   care

arrangements.

         According     to    his   presentence   investigation     report,   Calvin

successfully completed treatment at the IRTC.                After his discharge,

however, Calvin’s participation in the drug court program became

problematic. He was arrested on a bench warrant for a violation of the

drug court release agreement. As a result of the violation, Calvin was

incarcerated for one night. The next day, the district court ordered that

Calvin be released from jail and transported to the Harbor of Hope

halfway house.         The district court order directed, “Defendant shall

remain in said facility until successful discharge . . . .”

         After his transfer to the halfway house, Calvin was found in

contempt for a violation of the program’s rules. As a result, Calvin was

incarcerated in the Polk County jail for five days and released, though

the record does not reveal the circumstances of his release.                 Shortly

thereafter, the district court issued a warrant for Calvin’s arrest for

another violation of the terms of the drug court program.                Allegedly,

Calvin had absconded from the halfway house.                 Authorities arrested

Calvin almost six months later.

         In light of the repeated infractions, on March 16, 2012, the district

court removed Calvin from participation in the drug court program and

imposed a sentence for second-degree theft as a habitual offender,

pursuant to the plea bargain.          The district court sentenced Calvin to

serve fifteen years in prison, subject to a mandatory minimum of three

years.    The district court denied Calvin credit for time served between

March 25, 2011, and March 16, 2012, because he was a participant in

the drug court program during those dates. Calvin appealed.
                                     5

        Calvin claimed the district court imposed an unlawful sentence by

failing to give him credit for time served when he was under the

supervision of the drug court program. Specifically, Calvin argued that

he was entitled to credit for time spent in jail, with the exception of time

served pursuant to a contempt order, and that he was entitled to time

spent at the IRTC.    The court of appeals found Calvin was entitled to

credit for time served at the IRTC, but not for time served in jail due to

violations of drug court program rules. As a result, the court of appeals

affirmed in part and reversed in part the order of the district court and

remanded the case for resentencing.

        Calvin sought further review, which we granted.     He claims the

court of appeals erred in finding that he was not entitled to credit for

time spent in jail while he was under drug court supervision.        Calvin

concedes time spent in jail as a result of a contempt order does not

qualify for credit against the district court’s sentence.   Calvin claims,

however, that he is entitled to credit for the time he spent in jail as a

penalty for violating drug court program rules and for time spent at the

IRTC.

        II. Standard of Review.

        We review “the trial court’s application of pertinent sentencing

statutes for correction of errors at law.” State v. Hawk, 616 N.W.2d 527,

528 (Iowa 2000); see also State v. Mott, 731 N.W.2d 392, 394 (Iowa

2007).

        III. Discussion.

        A. Overview of Iowa Law Regarding Sentencing Credit. Calvin

seeks credit for jail time served prior to his conviction and sentence for

second-degree theft as a habitual offender.         The parties cite two

provisions of Iowa law that relate to credit for time served prior to
                                    6

conviction: Iowa Rule of Criminal Procedure 2.26(1)(f) and Iowa Code

section 903A.5(1) (2011).    Iowa Rule of Criminal Procedure 2.26(1)(f)

provides:

      Days in jail before trial credited. The defendant shall receive
      full credit for time spent in custody on account of the offense
      for which the defendant is convicted.

Iowa Code section 903A.5(1) provides, in relevant part:

      If an inmate was confined to a county jail . . . or mental
      facility at any time prior to sentencing, or after sentencing
      but prior to the case having been decided on appeal, because
      of failure to furnish bail or because of being charged with a
      nonbailable offense, the inmate shall be given credit for the
      days already served upon the term of the sentence.

      Although our caselaw under these provisions is sparse, a handful

of precedents have at least some bearing on the issues raised in this

appeal. In Mott, we considered whether a defendant’s time in jail as a

consequence of a contempt order following his profanity-laden outburst

in court should be considered part of a continuous term of imprisonment

under Iowa Code section 901.8 (2005).       731 N.W.2d at 393–94.       We

determined section 901.8, which pertains to consecutive sentences, only

applies when a district court sentences a defendant to multiple sentences

for criminal offenses.    Id. at 394.    Because the contempt statute

expressly prescribed “ ‘punishment for contempt’ ” and because prior

caselaw indicated contempt proceedings were “quasi-criminal, not

criminal, in nature,” we held that incarceration for contempt did not

equate to incarceration for a criminal offense.    Id. (quoting Iowa Code

§ 665.4). Consequently, we held that section 901.8 did not apply and

that the defendant’s sentence for a criminal offense and his punishment

for contempt had to be considered separately, not as “ ‘consecutive

sentences’ constituting ‘one continuous term of imprisonment.’ ”        Id.
                                        7

(quoting Iowa Code § 901.8). We concluded the defendant had to serve

his one-year sentence for assault causing bodily injury, a criminal

offense, and his punishment for contempt separately in the county jail.

Id.   We further distinguished other cases where a defendant received

sentences for multiple criminal offenses as opposed to the one criminal

offense in Mott.       Id. at 394–95.    Mott, however, did not involve an

interpretation of either Iowa Rule of Criminal Procedure 2.26(1)(f) or Iowa

Code section 903A.5(1) (2011), nor did it involve sanctions for violations

of drug court program regulations.

       In an unpublished opinion cited by the State, the court of appeals

held jail time resulting from contempt for failure to comply with the

terms of a drug court program and subsequent time spent at the Harbor

of Hope facility did not entitle a defendant to credit against the

underlying criminal sentence. See State v. Greening, No. 10–0935, 2011

WL 768744, at *1–2 (Iowa Ct. App. Mar. 7, 2011). The court of appeals

reasoned that jail time for contempt was not “ ‘on account of the offense

for which the defendant is convicted.’ ” Id. at *1 (quoting under Iowa Rule

of Criminal Procedure 2.226(1)(f)).

       We have one case where we considered whether a defendant was

entitled to credit under Iowa Code section 903A.5(1) for time served

during a mental health examination and evaluation. See State v. Capper,

539 N.W.2d 361, 366–67 (Iowa 1995), overruled on other grounds by

Hawk, 616 N.W.2d at 530.           In Capper, a defendant charged with sex

crimes was out on bail at the time he informed the district court he

intended   to   rely    on   the   defenses   of   insanity   and   diminished

responsibility. Id. at 363, 366–67. Pursuant to a court order, the sheriff

transported the defendant to the Iowa Medical Classification Center at

Oakdale (IMCC) for psychiatric and physical examination and evaluation
                                       8

“to determine his competency at the time of the alleged offenses.” Id. at

366.

       We concluded the defendant was entitled to credit under Iowa

Code section 903A.5(1). Id. at 367. Even though the defendant was out

on bail prior to the examination and evaluation at IMCC, we emphasized

that “he was committed to the institution by court order,” that “[h]e was

in the physical custody of the sheriff while being transported to and from

the state institution,” and that he “was in the custody of the institution

and the court while at IMCC.”      Id.     The situation in Capper was thus

unlike that in State v. Wiese, 342 N.W.2d 858, 860–61 (Iowa 1984),

where we refused to grant credit to a defendant convicted of operating a

motor vehicle while intoxicated for time voluntarily spent in an alcohol

treatment center after his arrest but prior to his conviction. See Capper,

539 N.W.2d at 367 (distinguishing Wiese).

       B. Positions of the Parties. Calvin concedes that under Mott he

is not entitled to credit for jail time served as a result of contempt. He

argues, however, that he is entitled to credit for the remaining time spent

in jail while under the supervision of the drug court that was not

pursuant to a contempt order. For this jail time, Calvin distinguishes

Mott by noting the defendant in that case was incarcerated for contempt,

which meant the defendant was entitled to a notice to show cause,

unless the contempt occurred in the presence of the court, and an order

stating the facts and circumstances of the incarceration. See Iowa Code

§§ 665.7, .10; Mott, 731 N.W.2d at 393–94. Calvin argues his situation

involves a summary penalty for alleged violations of drug court program

rules without a finding of contempt.

       Calvin further claims he is entitled to credit for the time he was at

the IRTC for inpatient treatment.        Calvin notes he was ordered to be
                                            9

transported to the IRTC for inpatient treatment. According to Calvin, the

IRTC qualifies as a “mental facility” under Iowa Code section 903A.5(1).

       The State, citing Greening1 and relying on the language of Iowa
Rule of Criminal Procedure 2.26(1)(f), responds that Calvin is not entitled

to credit for time spent in jail for drug court program violations because

the violations were not on account of the offense for which Calvin was

convicted. Moreover, the State argues section 903A.5(1) only authorizes

credit for time served “while awaiting sentencing” and does not expressly

authorize credit for any time served while under the supervision of the

drug court. The State does not directly address Calvin’s contention that

he is entitled to credit for time participating in the inpatient treatment

program at the IRTC.

       C.   Analysis.

       1. Credit for time served in jail for drug court program violations.

We first consider whether Calvin is entitled to credit for jail time he

served for violations of the drug court program rules other than time

served for contempt. There is no question that Calvin was confined in

the county jail prior to sentencing. The only question is whether Calvin’s

jail time was the kind of involuntary confinement for which he was

entitled to credit under Iowa law.

       We conclude Calvin is entitled to credit for noncontempt violations

of the drug court program.2 We rely primarily on the language of Iowa


       1Iowa  Rule of Appellate Procedure 6.904(2)(c) provides that “[a]n unpublished
opinion or decision of a court . . . may be cited in a brief if the opinion or decision can
be readily accessed electronically.      Unpublished opinions or decisions shall not
constitute controlling legal authority.”
       2Because Calvin does not claim credit for time spent in jail for contempt, we do

not address whether the approach in Mott is applicable to contempt arising out of drug
court program violations where the failure to complete the program has an impact on
sentencing for the underlying offense.
                                      10

Code section 903A.5(1), which grants credit for time served in a county

jail prior to sentencing.   While rule 2.26(l)(f) employs the phrase “on

account of the offense for which the defendant is convicted” that

language is absent from section 903A.5(1). We believe the rule should be

interpreted in tandem with the statutory provision.         Our rule was

designed to implement, not to add to or subtract from, the credit the

legislature granted in the statute.

      The jail time for which Calvin seeks credit was a penalty that was

part and parcel of an intensive supervision program. While we recognize

Mott stands for the proposition that a jail term for contempt does not

trigger credit under Iowa Code section 903A.5(1), the actions that led to

contempt in Mott had no bearing whatsoever on the guilt or sentencing

phase of the ongoing criminal proceeding.     The defendant in Mott was

found in contempt following his profane outburst directed at the court

during trial. 731 N.W.2d at 393–94. In Calvin’s case, however, Calvin’s

success in the program was directly related to the ultimate sentence to

be imposed. The parties had agreed to jointly recommend that he receive

a suspended sentence upon his successful completion of the program

and that he would serve a prison sentence if he failed to complete the

program. Calvin’s participation in the program was intended to provide

an opportunity for him to realize the benefits of a plea bargain that would

lead to a lesser sentence. Thus, while the jail time for contempt in Mott

was entirely unrelated to the guilt or sentencing phases of the

defendant’s trial on the underlying offense, the same cannot be said in

Calvin’s case.

      We also believe a closer analogy can be found in cases where a

criminal defendant is released pending trial, but is later arrested and

incarcerated for violations of a pretrial release agreement.         Such
                                       11

incarceration is not independent punishment, but rather simply part and

parcel of the underlying criminal process. See Commonwealth v. Nicely,

326 S.W.3d 441, 447–48 (Ky. 2010) (granting credit for time served in jail

for drug court program violations as analogous to time spent in jail for

violations of probation not warranting probation revocation).

      An examination of section 903A.5(1) supports Calvin’s claim to

credit for time served in jail as a penalty for drug court program

violations. Clearly, Calvin was an inmate confined “to a county jail . . . at

any time prior to sentencing.”         The statute does not carve out an

exception for jail time as a result of drug court program sanctions. See

Iowa Code § 903A.5(1); see also State v. Poston, 73 P.3d 1035, 1036–37

(Wash. Ct. App. 2003) (awarding credit for time spent in jail for violations

of drug court program conditions under a statute that did not

distinguish presentence confinement imposed by a drug court from other

court-ordered presentence confinement).          As a result, the initial

requirements for credit under section 903A.5(1) have been met.

      The next question is whether the phrase “because of failure to

furnish bail or because of being charged with a nonbailable offense” is a

statutory requirement Calvin failed to meet. Iowa Code § 903A.5(1). We

think it is not. The thrust of the language is that, once a charge has

been brought, a defendant is entitled to credit for presentence jail time

regardless of the defendant’s bail status at the time of the incarceration

for which credit is sought. See State v. Harrison, 468 N.W.2d 215, 217–

18 (Iowa 1991) (denying credit for time served prior to the filing of

charges). In other words, whether Calvin could have bailed out of the

county jail where he was incarcerated as a result of his drug court

program violations is irrelevant to the credit issue as long as he did, in

fact, serve time in the county jail.
                                     12

      2. Credit time served at the IRTC. The record reflects that Calvin

was sent to the IRTC for residential treatment as part of his participation

in the Polk County drug court program.           Under Iowa Code section

903A.5(1), time served in a mental health institution may qualify for

credit. Under our holding in Capper, the fact that a defendant was out

on bail prior to the evaluation does not disqualify the defendant from

receiving credit for the time of examination and evaluation under Iowa

Code section 903A.5(1). 539 N.W.2d at 366–67.

      We conclude Calvin is entitled to credit for the time he was in

residential treatment at the IRTC.        No one questions that the IRTC

qualifies as a mental facility under section 903A.5(1). There is also no

question that Calvin was confined at the IRTC. The order for treatment

and transport to the facility emphasized that if Calvin left the facility

without a proper escort, the act would be deemed an escape for which

Calvin could be separately prosecuted. Under our interpretation of Iowa

Code section 903A.5(1), bail status is irrelevant to this issue.

      Further, Calvin’s confinement at the IRTC was related to his

underlying sentence. Successful completion of the residential treatment

was a required part of his participation in the drug court program. Thus,

unlike the situation in Mott, the time Calvin spent at the IRTC was

related to the ultimate sentence in the underlying criminal proceeding.

As a result, Calvin is entitled to credit for the time he spent confined in

the mental facility pursuant to Iowa Code section 903A.5(1).

      D. Remedy.      The proper remedy when a district court fails to

grant a defendant credit for court-ordered confinement is to remand the

case for a modification of the sentencing order to grant the defendant

proper credit.   See id. at 367; see also Hawk, 616 N.W.2d at 529–30

(rejecting a contention that a district court must calculate the amount of
                                    13

credit for time served). Accordingly, we remand the case to the district

court to modify its sentencing order to grant Calvin credit for time served

in residential treatment at the IRTC and in the county jail as punishment

for violations of the drug court program, but not for time served in the

county jail for contempt.

      IV. Conclusion.

      For the above reasons, we vacate the decision of the court of

appeals and vacate in part the sentence of the district court. We remand

the matter to the district court to modify its sentencing order in

accordance with this opinion.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT SENTENCE VACATED IN PART, AND CASE REMANDED WITH

INSTRUCTIONS.