                   IN THE COURT OF APPEALS OF IOWA

                              No. 3-1049 / 13-0037
                              Filed March 12, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL JAMES KOUT,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve,

Judge.



      Michael James Kout appeals his conviction for lascivious acts with a child.

AFFIRMED.



      Michael Kout, Coralville, pro se appellant.

      Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney

General, and Alan Ostergren, County Attorney, for appellee.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
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BOWER, J.

       Michael James Kout appeals his conviction for lascivious acts with a child.

He claims the district court violated his equal protection rights by refusing to give

him credit for time served during his supervised pretrial release. Kout also claims

he received ineffective assistance of counsel. We find no provision in Iowa law

that would entitle Kout to credit for pretrial supervision, and also find he has failed

to show an equal protection violation. We preserve his ineffective-assistance-of-

counsel claims for postconviction relief. We affirm.

I.     Background Facts and Proceedings

       Michael James Kout was charged with sexual abuse in the second degree

on January 3, 2011.       Kout entered a guilty plea to the reduced charge of

lascivious acts with a child on September 30, 2011.           He was sentenced on

January 6, 2012, to serve an indeterminate ten-year prison sentence.

       On October 31, 2012, Kout filed a motion requesting credit towards his

sentence for time spent on pretrial supervision.          After being arrested and

charged, Kout posted bond and, as a condition of his release, was required to

report to the Seventh Judicial District Department of Correctional Services (DCS)

for pretrial supervision. He remained under DCS supervision for a total of 379

days. The district court denied his motion, finding Iowa law did not provide credit

towards one’s sentence for time spent on pretrial supervision. The district court

also rejected Kout’s equal protection claim.
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II.    Scope and Standard of Review

       We review issues of statutory interpretation for corrections of errors of law.

State v. Allensworth, 823 N.W.2d 411, 413 (Iowa 2012). Our review of claims

under the equal protection clause is de novo. In re L.M., 654 N.W.2d 502, 505

(Iowa 2002).

III.   Discussion

       A.      Iowa Code Sections 907.3(3) and 901B.1

       Kout claims that Iowa Code sections 907.3(3) and 901B.1 (2011), when

read together, entitle him to credit for time spent under pretrial supervision. He

also relies upon Anderson v. State, 801 N.W.2d 1 (Iowa 2011), to support his

argument.

       Kout’s reliance on the cited authorities is incorrect. Section 907.3 gives

the district court certain sentencing options “upon a plea of guilty, a verdict of

guilty, or a special verdict upon which a judgment of conviction may be

rendered.” Iowa Code § 907.3. Section 907.3(3) allows for credit, in certain

circumstances, only when supervision is ordered as part of a criminal sentence.

Though Kout attempts to categorize his pre-trial supervision as a “sentence,” the

supervision Kout seeks to utilize as a source of credit is not a criminal sentence.

Pretrial supervision is not mentioned in section 907.3(3). Nor does Anderson

dictate a different result.   Anderson does hold an individual is entitled to

sentencing credit when subject to supervision as a level two or level three

supervisee under section 901B.1; however Anderson applies exclusively to a

defendant on probation or parole, not an individual on pretrial release.        See
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Anderson, 801 N.W.2d at 1-5. Nothing in Anderson converts sentencing credit

for time spent under supervision after conviction into sentencing credit for time

spent under pretrial supervision.

       B.     Equal Protection

       Kout claims the district court violated the Equal Protection Clause of the

Iowa Constitution by refusing to grant him credit for time served under pretrial

supervision when other defendants who remain in jail before trial are granted

credit for time served. Kout primarily relies upon a district court decision from

Pocahontas County where a similar criminal defendant was granted the credit

Kout seeks.

       “All laws of a general nature shall have a uniform operation; the general

assembly shall not grant to any citizen, or class of citizens, privileges or

immunities, which, upon the same terms shall not equally belong to all citizens.”

Iowa Const. art I, § 6. Our equal protection clause requires only that similarly

situated people be treated alike. Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa

2009). A demonstration that people are similarly situated is a threshold test;

failure to make this showing requires no further consideration of the alleged

equal protection violation. Id. Kout cannot pass this threshold test. Kout is not

similarly situated to criminal defendants who are confined to jail prior to trial. As

a defendant subject to a lower level of supervision before trial, he enjoyed

greater freedoms than criminal defendants confined to jail. Having failed to pass

this threshold requirement, we proceed no further with his equal protection claim.
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      C.     Ineffective-Assistance

      Kout claims his trial counsel provided ineffective assistance by failing to

adequately argue his double jeopardy and cruel and unusual punishment claims

under the United States Constitution. We rarely address ineffective-assistance

claims on direct appeal. See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa

2006). The record provided does not allow us to assess the performance of

Kout’s trial counsel. Finding the record insufficient to address the claim, we

preserve Kout’s arguments for postconviction relief.

      AFFIRMED.
