IN THE COURT OF APPEALS OF IOWA

No. 20-0517

Filed June 16, 2021

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TIMOTHY ALVIN NEWTON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Ringgold County, Dustria A. Relph, 

Judge.

Timothy Newton appeals his convictions for operating while intoxicated, 

second offense, and driving while barred. AFFIRMED.

Jesse A. Macro, Jr. of Macro & Kozlowski, LLP, West Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2

BOWER, Chief Judge.

Timothy Newton was found guilty of operating while intoxicated (OWI), 

second offense, and child endangerment after a jury trial in 2016. State v. Newton, 

No. 16-1525, 2018 WL 739251, at *3 (Iowa Ct. App. Feb. 7, 2018) (Newton I).1 On 

appeal, this court reversed the conviction for second-offense OWI, finding the court 

had not engaged in a proper colloquy with Newton before he stipulated to a prior 

OWI conviction.2 Id. at *6. On further review, our supreme court affirmed the 

reversal of the second-offense OWI conviction and remanded for further 

proceedings. State v. Newton, 929 N.W.2d 250, 259 (Iowa 2019) (Newton II). 

On November 12, 2019, Newton pleaded guilty to OWI, second offense. 

That same date, he also pleaded guilty to a new charge of driving while barred. 

Newton was ordered to “submit to an evaluation for substance abuse and file a 

copy” of the evaluation with the clerk of court before sentencing, which was 

scheduled for January 13, 2020. 

On January 11, Newton filed a motion for an updated presentence 

investigation (PSI) report and to continue sentencing.

3

 The district court granted 

the continuance until January 27 but denied the motion for an updated PSI noting, 

“The defendant will be provided an opportunity to present any additions or 

corrections to the previously submitted report at the time of sentencing.”

 

1 The convictions arise from conduct that occurred on September 3, 2014. 

Newton I, 2018 WL 739251, at *1.

2 Newton’s conviction for child endangerment was affirmed. Newton I, 2018 WL 

739251, at *1 n.1 (noting Newton did not challenge the child-endangerment 

conviction).

3 A PSI had been completed and a report submitted in September 2016.
3

On January 27, the court ordered mittimus issue on the child-endangerment 

conviction, and Newton began serving his two-year indeterminate sentence.

After protracted procedural delays, an attorney substitution, and the court

finding Newton in contempt, the sentencing hearing for the second-offense OWI 

and driving-while-barred convictions was held on March 23. During the sentencing 

hearing a recess was taken to allow Newton to review the PSI report with his 

attorney. The defense did not object to the court using the information contained 

in the PSI report and offered no additions or corrections. The State asked the court 

to take judicial notice of two additional convictions since the 2016 PSI was 

completed. 

The defense asked the court to consider granting probation on the two 

outstanding convictions:

I know that seems like an odd paradigm, but I think in this case and 

given the current environment it would provide Mr. Newton some 

term of incarceration as he’s already experienced and will likely 

experience for a little while future—in the future.

But then placing him on probation on the other counts then 

provides a clearer path for him to exit the prison environment into the 

community where he would have, I think based on my experience, a 

little more to—a little more resources to avail himself of on the 

probation side versus the parole side, and that’s—that’s just been my 

experience over the years, that the probation side of things seems to 

do a better job of helping people get back on their feet. 

The prosecutor recommended imposition of consecutive terms of 

incarceration.

Your Honor, under of the plea agreement in this case, the State’s

recommendation is that the defendant receive periods of 

incarceration on the remaining two charges; on Count I, that he 

receive an indeterminate two-year prison term, and the State is 

recommending that be run concurrent to Count II in the OWI case.

Then in relation to the driving while barred case, the State is 

requesting the defendant be ordered to serve an indeterminate term 
4

not exceed two years on that charge and that sentence be served 

consecutive to the defendant’s sentences on the OWI charge.

The reasoning—the reason for the State’s argument for the 

consecutive time is the offense was committed while the defendant 

was on release at that point on posting appeal bond on the pending 

case. So it was—the crime was committed while the defendant was 

in essence awaiting imposition of sentence in this case.

. . . .

Also, Your Honor, I would note that, again, coronavirus 

issues, that’s a legitimate consideration at this point in time 

concerning sentencing. It’s not a factor. The supreme court has 

recognized or identified even in the most recent supervisory orders

that have been issued, in that the issue the parole board has full 

authority to deal with. 

In terms of the defendant receiving probation, Department of 

Corrections services whether those are any greater in a probation 

context or not, I don’t know, but I would say the defendant has 

outstanding probation in Decatur County, so I would assume he’ll be 

getting full benefit of any probationary services available through that 

case when he gets out. Between what parole services provide and 

what probation services can provide, he should be able to receive

that through that Decatur County charge.

The district court imposed a two-year indeterminate sentence on the OWI 

charge, which would be served concurrently with the child-endangerment charge

Newton was then serving. In the written judgment, the court observed: “The 

defendant has failed to obtain and/or file a copy of the defendant’s substance 

abuse evaluation; however, because of the defendant’s sentence of incarceration 

set forth below, the court waives the requirement that said evaluation be obtained 

prior to the pronouncement of sentence . . . .” Newton was ordered to be evaluated 

for substance abuse during his incarceration. The court also imposed a two-year 

indeterminate sentence on the driving-while-barred charge to be served 

consecutive to the others.

Newton appeals. With respect to the sentence imposed on the OWI 

conviction, Newton contends the court erred in failing to ensure a substance-abuse 
5

evaluation was obtained prior to sentencing. As for the sentence imposed upon 

the driving-while-barred sentence, Newton contends the court abused its 

discretion in denying his motion for an updated PSI.

“Our review of a sentence imposed in a criminal case is for correction of 

errors at law.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not 

reverse a sentence unless there is “an abuse of discretion or some defect in the 

sentencing procedure.” Id.

Pursuant to Iowa Code section 321J.3, where a defendant is 

convicted of a second or subsequent OWI offense, the district court 

is required to order the preparation of a substance abuse evaluation 

prior to sentencing. We have previously recognized two exceptions 

to the requirement: (1) when the court receives the substantial 

equivalent of a substance abuse evaluation; and (2) when the public 

interest in securing an evaluation has been fully served.

State v. Breese, 581 N.W.2d 631, 632 (Iowa 1998). The Breese court determined 

the public-interest exception “embraces the circumstances of this case where the 

court did order the substance abuse evaluation in accordance with section 321J.3, 

but defendant did not cooperate with the order.” Id. The exception is applicable 

here.

Newton was ordered to complete a substance-abuse evaluation on 

November 12, 2019. A number of continuances were granted in these 

proceedings. Newton did not complete a substance-abuse evaluation before 

mittimus issued on the child-endangerment charge in January 2020. The failure 

to obtain a substance-abuse evaluation prior to sentencing is not grounds for 

reversal under the circumstances of this case.

We have explained that the public has an interest in the evaluation 

and possible treatment because it “can benefit the public by aiding 

persons who, but for substance abuse, would make useful citizens 
6

who would pose no threat to society.” However, the benefit of an 

evaluation must be balanced against the public interest in the 

operation of an efficient justice system. If sentencing cannot occur 

until a defendant ordered to undergo a substance abuse evaluation 

complies with the order, an uncooperative defendant could delay 

sentencing. Such a delay is against the public interest.

Id. (internal citation omitted). 

In its sentencing order, the court noted the department of corrections could 

determine whether placement in the OWI Continuum Program was appropriate 

and ordered Newton to obtain a substance-abuse evaluation. We find no 

prejudicial error in the court’s waiver of a presentence substance-abuse 

evaluation.

Nor did the district court abuse its discretion in denying the request for an 

updated PSI.4 The defense did not object to the court using the information 

contained in the PSI report and offered no additions or corrections. We affirm.

AFFIRMED.

 

4 Driving while barred is an aggravated misdemeanor. Iowa Code § 321.561

(2019). “[A] criminal defendant who pleaded guilty to an aggravated misdemeanor 

cannot demand a PSI as a matter of right; instead, one can be prepared at the 

discretion of the district court.” State v. Robinson, 841 N.W.2d 615, 617 (Iowa Ct. 

App. 2013).