Opinion
No. 5-724 / 05-1085
Filed October 26, 2005
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, District Associate Judge.
Stephen Stubbe appeals from the district court's sentencing order following his plea of guilty to operating while intoxicated, second offense. AFFIRMED.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Steve Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee.
Jane Odland of Walker Billingsley, Newton, for appellant.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Stephen Stubbe appeals from the district court's sentencing order following his plea of guilty to operating while intoxicated, second offense. He contends the district court improperly considered an operating while intoxicated conviction outside the twelve-year "look back" statute and in impounding his vehicle for one year. We review a district court's sentencing decision either for abuse of discretion or for a defect in sentencing procedure, such as the district court's consideration of impermissible sentencing factors. State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Where improper factors are considered, a sentence must be vacated and the case remanded for resentencing. State v. Sinclair, 582 N.W.2d 762, 765 (Iowa 1998).
Stubbe was arrested for operating while intoxicated (OWI) in April 2005. He had two prior convictions for OWI; one in 1994 and one in 1985. The county attorney charged Stubbe with OWI, second offense, because Stubbe's 1985 conviction fell outside of the twelve-year "look back" period articulated in Iowa Code sections 321.12 and 321J.2(4)(a) (2005). On June 29, 2005 Stubbe pled guilty and asked to be sentenced immediately. He was sentenced to sixty days incarceration, a $1500 fine plus surcharge and court costs, drinking driver's school, a substance abuse evaluation and treatment, and a $10 DARE civil assessment. The court further ordered Stubbe's automobile be impounded/immobilized for one year. Although the court did not mention the impoundment of his vehicle orally when it sentenced Stubbe, the provision was included in the written sentencing order provided to Stubbe at the same time.
In sentencing Stubbe, the district court stated:
With two prior convictions for drunk driving, I can't consider this as just business as usual and go along with just a brief few days in jail. It doesn't have to be especially dramatic, but it has to be something to make you take notice and tell all your friends and coworkers as well. To deter you from any more driving under the influence and to encourage rehabilitation, if possible, that would be fine, if you can deal with a drinking problem. But to make sure you don't think about mixing being under the influence with driving again, the Court's going to impose the following sentence to accomplish those ends. . . .
Stubbe first contends the court erred in considering his 1985 conviction for OWI because section 321J.2(4)(a) provides "[a]ny conviction or revocation deleted from motor vehicle operating records pursuant to section 321.12 shall not be considered as a previous offense."
We conclude the district court did not impermissibly consider Stubbe's 1985 OWI conviction. Section 321J.2(4)(a) concerns whether a violation charged is a second or subsequent offense. It does not prohibit the court from considering previous OWI convictions when sentencing a defendant. See State v. Cooley, 587 N.W.2d 752, 755 (Iowa 1998) (noting the sentencing court considered the defendant's four previous OWI convictions although he was convicted of OWI, first offense).
Stubbe next contends the court erred in impounding his vehicle. He claims the court made no mention of impoundment on the record at the sentencing hearing and therefore could not include it in the written order. Iowa Code section 321J.4B(a) provides a vehicle is subject to impoundment following a conviction of OWI, second offense. Stubbe cites no authority for his contention. Therefore, we will not consider it. Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").