                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0699
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

REED NATHAN BARCLAY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, James M.

Drew, Judge.



      A defendant appeals his indeterminate fifteen-year prison sentence for

delivery of methamphetamine as a habitual offender. AFFIRMED.



      Sarah A. Reindl of Reindl Law Firm, Mason City, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

      Reed Barclay alleges the sentencing court discriminated against him

because he suffers from mental illness.       Barclay seeks to have his prison

sentence vacated and to be admitted into drug court. Because Barclay’s claim of

discrimination does not lead to his desired remedy, we affirm his judgment and

sentence.

      I.     Prior Proceedings

      In December 2015, the State charged Barclay by trial information with two

counts of delivery of methamphetamine, class “C” felonies, in violation of Iowa

Code sections 124.401(1)(c)(6) and 124.413 (2015), as a second and

subsequent offender under section 124.411, and as a habitual offender under

sections 902.8 and 902.9(1)(c). In February 2016, Barclay initialed and signed a

written plea of guilty to one of the two delivery counts. As part of the agreement,

the State agreed to dismiss the second count and to recommend a prison term

not to exceed forty-five years, all suspended; five years’ probation; and

placement in drug court.

      The Second Judicial District Department of Correctional Services

completed a presentence investigation (PSI) in April 2016. Thirty-four-year-old

Barclay reported to the investigator that he had been “diagnosed with

schizoaffective disorder, ADHD, and intermittent explosive disorder and was in

special education and behavior disorder classes while in school.” He dropped

out of high school after the eleventh grade but received his GED from North Iowa

Area Community College in 1999.
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       Barclay also reported being a daily user of methamphetamine and was

diagnosed with a severe amphetamine-type substance-abuse disorder.                 He

received in-patient treatment at Prairie Ridge Integrated Behavioral Healthcare in

Mason City in 2015, but he left the program in December of that year and was

hospitalized at the Mercy Medical Center psychiatric unit. According to the PSI,

Prairie Ridge staff evaluated Barclay in February 2016 as a result of a drug-court

referral. The PSI reported the drug-court team decided not to accept Barclay into

the drug-court program.      The PSI recommended Barclay be sentenced to a

prison sentence not to exceed forty-five years, reasoning: “The defendant’s

criminogenic needs require a higher level of supervision than what community

based supervision can provide.”

       Barclay was aware of the drug-court team’s decision at the March 2016

guilty-plea hearing. His counsel explained: “Mr. Barclay has been evaluated for

drug court and they won’t accept him at this time. They might reevaluate him

over the term of his probation, but right now they believe it’s a little too much

anxiety for him to participate in that right off the bat.” The plea-taking court

responded: “So the screening for drug court has been done, and that’s not an

option at this time. So I’m assuming then we’re just going to jointly recommend

probation to the Department of Correctional Services without involvement in drug

court?” Defense counsel agreed that was accurate. But the prosecutor said he

still intended to recommend drug court, saying “It’s still . . . the court’s discretion
                                          4


whether they allow him in.[1] So since that’s what I agreed to, that’s what I’m

going to recommend.” Barclay personally affirmed he understood the status of

the drug-court recommendation and, nevertheless, went ahead with his guilty

plea.

        At the April 2016 sentencing hearing, the State recommended “a forty-five-

year prison sentence with the one-third mandatory minimum imposed but that

sentence be suspended with a recommendation for placement in the Cerro

Gordo County drug court.” The prosecutor continued:

        [I]n support of my recommendation, I do believe [Barclay] does
        have a lengthy drug history and criminal history that would suggest
        that he does need . . . the drug court and its specialized training in
        order to be successful in becoming a productive member of our
        society. I do believe a lot of his offenses are drug-induced or drug-
        related, so the State feels that the drug court would be in his best
        interest and will leave it for the court’s determination.

        Defense counsel asked the court to accept the State’s recommendation

but also asked the court to sentence Barclay to “something other than forty-five

years” as recommended by the PSI. Defense counsel revisited the drug-court

discussion:

        Again, Mr. Barclay did apply for the drug court. Initially he was
        rejected. . . . I’m not sure the reason, but I know that they had
        reached capacity or very close to it at the time that Mr. Barclay had
        applied.     Certainly during his probation supervision if they
        reevaluated him, made a determination that he was appropriate for
        drug court—he’s nodding his head indicating to you, your Honor,
        that he would like to participate in that. He’s heard some very good
        things about that.




1
  Our record does not contain any information about the application and approval
process for the Cerro Gordo County Drug Court. Thus, it is not clear that the district
court did have unilateral discretion to accept a defendant into the program.
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In his allocution, Barclay shared his “plan for success” in pursuing drug treatment

in the community so that he could be a “contributing member of society” if he was

not accepted into drug court.

       In imposing sentence, the judge told Barclay he was considering the

statutory   factors,   including   Barclay’s   age,    prior   record,   employment

circumstances, nature of the offense, his attitude, and the information and

recommendations in the PSI. The court also assured Barclay he was seriously

considered for participation in drug court:

       I oversee drug court, and for multiple reasons you were deemed
       not acceptable for the drug court program. And I’m not required to
       explain why somebody gets or doesn’t get into drug court, but I
       want to assure you and everybody that’s here supporting you that
       we don’t take those applications lightly and we really looked hard at
       your situation and talked a lot about it.

       The court further addressed Barclay’s combination of substance-abuse

and mental-health issues.

       One of the problems that we have that you present for us is a
       societal problem, and it bothers me. I want you to know that mental
       illness is a topic that is very close to me, and our society just really
       has failed miserably in providing the resources we need to properly
       deal with mental illness. And then when you combine that with
       serious drug addiction, it just compounds the problem. And, you
       know, you are a classic dual diagnosis defendant as you sit here. I
       know you know this. I’m pretty sure the people here for you know
       this. Your record is abysmal. It’s really bad. And that’s why you sit
       here facing this charge as a habitual offender.

       The court then offered the following explanation for imposing an

indeterminate fifteen-year term of incarceration:

              From my vantage point the only way probation would work
       for you is in some type of a specialty court, which we just don’t
       have the resources to handle a person in your situation. And, you
       know, some days are just less fun than others for my job, Mr.
       Barclay, but I think the recommendation from the Department of
                                          6


       Correctional Services is appropriate and we’re going to impose the
       prison sentence. However, . . . I am not going to impose the triple
       sentence on you. I believe that the [fifteen] years with five-year
       mandatory minimum will be sufficient to obtain the sentencing
       objectives.

       Barclay appeals, contesting only the sentence imposed. He contends the

district court “discriminated” against him “at sentencing because of his disability

denying him equal protection under the law and violating the Americans with

Disabilities Act as Amended.”

       II.    Scope and Standards of Review

       Our standard of review depends on the nature of the challenge to the

sentence. See State v. Seats, 865 N.W.2d 545, 552–53 (Iowa 2015). To the

extent Barclay raises an equal-protection claim, we review the sentence de novo.

See id. at 553. But we review Barclay’s nonconstitutional claim invoking the

Americans with Disabilities Act Amendments Act of 2008 (ADA) for the correction

of legal error. See id. In general, we review a sentencing decision for an abuse

of discretion. See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). “A district

court abuses its discretion when it exercises its discretion on grounds clearly

untenable or to an extent clearly unreasonable.” Id.

       III.   Analysis

       Barclay argues he was denied entry into drug court “because of his mental

illness, and his sentence of incarceration, rather than accommodating him in the

drug court program, discriminated against him based upon his disability.” He

asserts: “If drug court is a program that is offered to drug users, it was illegal for

the trial court to deny drug court to Mr. Barclay because he is disabled and a

drug user.” Barclay contends the sentencing court’s decision violated the ADA
                                           7


and “his right to equal protection of the law guaranteed by the Fourteenth

Amendment to the Constitution.”2        Barclay cites Pennsylvania Department of

Corrections v. Yeskey, 524 U.S. 206, 209 (1998), for the proposition that

correctional services, programs, and activities shall not be denied as the result of

a disability.

       The State counters that Barclay has chosen the wrong forum for his

disability complaint. The State relies on the analysis from a similar sentencing

challenge before a Virginia appellate court, quoting: “Nowhere in the ADA does it

appear that Congress intended the Act to provide rights that could be asserted in

a criminal proceeding . . . .” See Wilson v. Commonwealth, 522 S.E.2d 385, 387

(Va. Ct. App. 1999). The Virginia court rejected Wilson’s argument that Yeskey

governed the sentencing court’s order of incarceration, denying her admission to

a detention center program due to her mental health condition.                 See id.

(emphasizing Yeskey involved a civil suit filed against a department of

corrections in accord with ADA provisions).

       Our supreme court expressed a similarly narrow view of Yeskey’s holding

when rejecting a claim that a sentencing court erred in failing to consider the

ADA in mitigation of punishment or in deciding the appropriate placement among

sentencing options. See State v. Jacobs, 644 N.W.2d 695, 697 (Iowa 2001).

The court opined: “Our review of that decision convinces us that it only mandates

that specific services otherwise provided to prison inmates shall not be denied as


2
  Although Barclay mentions equal protection in his appellate brief, he does not include
any argument in support of a constitutional claim. Accordingly, the equal-protection
issue is not properly before us. See Baker v. City of Iowa City, 750 N.W.2d 93, 102–03
(Iowa 2008) (holding a conclusory statement without argument waives an issue).
                                         8


the result of a disability.   The defendant here has been denied no service

because of his disability.” Id. The Jacobs court did not address the applicability

of the ADA in a criminal proceeding because it found the “defendant’s disability, if

any, did not play any role in [the sentencing] decision.” See id.

       Barclay contends his case differs from Jacobs because the sentencing

judge, who happened to belong to the drug-court team, suggested Barclay’s

mental illness was a factor in the team turning down his application. In turn, the

court denied Barclay’s request for probation, believing Barclay would not

succeed outside of prison without drug-court supervision. The State agrees the

drug-court rejection influenced the court’s decision to sentence Barclay to prison

but disagrees that the drug-court team’s reasons for rejecting Barclay’s

application are apparent from this record.

       After canvassing the parties’ arguments, we are not persuaded Barclay is

entitled to relief from his prison sentence under the ADA. Congress enacted the

ADA to eliminate discrimination against people with disabilities and to create

causes of action for qualified people who have faced discrimination. See 42

U.S.C. § 12101(b).     Congress amended the ADA in 2008 to reject several

opinions of the United States Supreme Court that had “the effect of restricting the

meaning and application of the definition of disability.”      See Goodpaster v.

Schwan’s Home Serv., Inc., 849 N.W.2d 1, 8 (Iowa 2014) (quoting statement

from then Iowa Senator Tom Harkin). But Barclay has not pointed us to any

precedent from Iowa or other jurisdictions where a criminal defendant has relied

on the ADA to successfully attack a sentencing court’s exercise of discretion, and

we have found none.
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       Generally a successful showing of discrimination under the ADA requires

a plaintiff to show he or she has a physical or mental impairment that

“substantially limits one or more major life activities.” See Sanchez v. Vilsack,

695 F.3d 1174, 1178 (10th Cir. 2012) (quoting 42 U.S.C. § 12102(1)(A)). “[I]t is

not sufficient for a plaintiff to identify an impairment and leave the court to infer

that it results in substantial limitations to a major life activity.”   Id.   Because

Barclay did not challenge his exclusion from drug court before or after entering

his guilty plea, we have no record regarding his mental impairment, other than

the information he provided to the PSI preparer. And we have no showing the

mental illness diagnoses listed in the PSI posed a substantial limit on a major life

activity for Barclay. Accordingly, we cannot find the ADA applies to this case.

See generally Evans v. State, 667 S.E.2d 183, 186 (Ga. Ct. App. 2008) (rejecting

challenge by criminal defendant found ineligible for drug court where defendant

“neither argued nor demonstrated” his disabilities affected a major life activity).

       Barclay is correct in asserting an illegal-sentence claim stands as an

exception to the rules of error preservation. See State v. Bruegger, 773 N.W.2d

862, 871 (Iowa 2009) (holding claim that sentence was illegal because it violated

constitutional provision could be raised for first time on appeal). But that error-

preservation exception does not absolve Barclay from showing he is a “qualified

individual with a disability,” who meets the essential eligibility requirements for

participation in the Cerro Gordo County drug court, to prove an ADA violation.

See 42 U.S.C. § 12131(2). Even if a criminal case could serve as an appropriate

forum for an ADA challenge, Barclay did not lay the proper groundwork here.
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      Finally, the State contends it was permissible, in fact mandatory, for the

district court to consider the impact of Barclay’s mental health issues on his need

for rehabilitation and the need for community protection.        See Iowa Code

§ 907.5(1)(e) (directing court to consider “[t]he defendant’s mental health and

substance abuse history and treatment options available in the community and

the correctional system” before suspending sentence). We agree and find no

abuse of discretion in the court’s sentencing decision. See State v. Wright, 340

N.W.2d 590, 593 (Iowa 1983) (holding “right of an individual judge to balance the

relevant factors in determining an appropriate sentence inheres in the

discretionary standard”).

      AFFIRMED.
