                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-2006
                               Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARON WILKINSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cedar County, Stuart P. Werling,

Judge.



      A defendant challenges the sentence imposed on his conviction for theft in

the second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until his withdrawal), and Brenda

J. Gohr, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ..
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TABOR, Judge.

      Daron 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.

      Because 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 proceedings.

      A state 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.

      Under 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:
                                              3


“I would think giving him a deferred judgment would give a very poor signal to the

taxpayers.”

          The presentence investigator also recommended a suspended sentence

and probation, and referenced its use of a risk-assessment tool:

          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
          category1 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.

          At the 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.”

          On 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




1
    The PSI does not explain what it means to score in the “administrative category.”
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preserved for review, his trial counsel was ineffective for failing to challenge the

sentencing procedure.2

       Generally, the sentencing court may consider all information within the PSI

unless the defendant objects or makes material corrections.                 See State v.

Grandberry, 619 N.W.2d 399, 402 (Iowa 2000). In Guise, our supreme court held

a due-process challenge to the use of the IRR at sentencing could not be raised

for the first time on appeal. 921 N.W.2d at 29 (noting Guise told the sentencing

court “it could rely on the information in the PSI”). In Gordon, the court explained

the defendant’s claim that reliance on a risk assessment tool violated his right to

due process was not the same as asserting the sentence was “intrinsically

unconstitutional.” 921 N.W.2d at 23 (contrasting cruel-and-unusual-punishment

issue in State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009), which required no

error preservation). In both Gordon and Guise, the supreme court noted the

defendant could “bring a separate postconviction-relief action claiming ineffective

assistance of counsel based on due process, if he so wished.” 921 N.W.2d at 23;

921 N.W.2d at 29. The same is true here. Wilkinson did not preserve error on his

due-process attack on the sentencing procedure but may revisit that argument if

he desires to do so in postconviction proceedings.

       AFFIRMED.




2
 Wilkinson filed his final brief before the supreme court issued its decisions in Gordon and
Guise. Accordingly, he did not have the benefit of those holdings.
