                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0868
                             Filed January 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID SHELLEDY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carol L. Coppola,

District Associate Judge.



      David Shelledy appeals the district court’s denial of his motion to continue

sentencing and the sentence imposed. AFFIRMED.




      Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

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

Attorney General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
                                         2


BOWER, Judge.

      David Shelledy appeals his sentence for operating while intoxicated, third

offense. Shelledy claims the court should have continued his sentencing hearing

until his inpatient treatment program was complete, and the court erred by

imposing a harsher sentence than recommended in his presentence investigation

report (PSI). We find the court acted within its discretion in denying the motion to

continue the sentencing hearing and in imposing sentence.

      I.      Background Facts & Proceedings

      On November 7, 2017, Shelledy was arrested after he was witnessed

driving into a convenience store parking lot while inebriated. On November 14, the

State charged Shelledy with operating while intoxicated (OWI), third offense, in

violation of Iowa Code section 321J.2 (2017), a class “D” felony; and driving while

his license was revoked, in violation of section 321J.21, a serious misdemeanor.

On March 15, 2018, Shelledy pleaded guilty to the OWI charge pursuant to a plea

agreement, and the State agreed to dismiss the driving while revoked charge. The

plea agreement did not specify sentencing recommendations. Sentencing was set

for May 14.

      Shelledy obtained three substance-abuse evaluations.            The first, in

December 2017, recommended intensive outpatient treatment for alcohol abuse.

Shelledy was referred to outpatient treatment in his home state of Missouri but did

not participate, instead participating in Alcoholics Anonymous (AA) classes as

advised by his attorney. An evaluation was performed in March in his home state,

but he moved to Iowa to help his mother and obtained an updated Iowa evaluation

in April 2018; this last evaluation recommended inpatient residential treatment.
                                        3


Shelledy was added to a waitlist at an inpatient program in Iowa. Shelledy has

twice before completed the Iowa Department of Corrections’s (DOC) OWI

programming.

      On May 4, the DOC filed Shelledy’s PSI. The PSI stated incarceration

would be an appropriate sentence but recommended the statutory minimum of

thirty days in jail with the remaining sentence suspended; the DOC’s

recommendation was based on his current employment, involvement in AA, and

positive social support. The PSI also recommended completion of a substance-

abuse treatment program. The PSI noted this was Shelledy’s sixth OWI conviction,

his third within twelve years, and that he had been discharged from his most recent

OWI parole in October 2017.

      On May 10, after receiving the PSI, Shelledy filed a motion to continue the

sentencing hearing to September so he could complete an inpatient treatment

program, which he would begin in late July. He then amended the motion to move

sentencing to July as he could enter the inpatient program in late May. Time spent

in residential treatment, if it qualified under statute, might have been credited

against the thirty-day mandatory minimum for Shelledy’s sentence. The court

denied the motion, finding Shelledy had “ample time to complete treatment.”

      At sentencing, Shelledy requested the statutory sentence, suspended

except for the minimum thirty-days in jail, and inpatient treatment credited toward

his jail term. The State recommended sending Shelledy to prison. The court

sentenced Shelledy to an indeterminate term of imprisonment not to exceed five

years. Shelledy appeals.
                                           4


       II.     Standard of Review

       “We review the denial by the district court of a motion for continuance for an

abuse of discretion.” State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000). “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 the

decision of the district court absent an abuse of discretion or some defect in the

sentencing procedure.” Id.

       III.    Analysis

       A.      Motion to continue. Shelledy claims the district court abused its

discretion in denying his motion to continue filed four days prior to the scheduled

sentencing hearing. The sentencing hearing had been set two months after the

plea hearing.     Four days before the hearing, Shelledy sought to continue

sentencing by four months so he could complete a residential treatment program.

       “A trial judge is required to set a date for the pronouncement of judgment

and imposition of sentence within a reasonable time after a verdict of guilty.”

Artzer, 609 N.W.2d at 531. “The process does not contemplate unnecessary delay

between the verdict of guilty and the entry of judgment and sentence.” Id. The

decision to grant or refuse a continuance rests in the trial court’s discretion and will

not be disturbed unless it results in injustice. State v. Clark, 814 N.W.2d 551, 564

(Iowa 2012).    “A motion for continuance shall not be granted except upon a

showing of good and compelling cause.” Iowa R. Crim. P. 2.9(2).

       Shelledy had received an outpatient treatment recommendation prior to his

plea hearing, and two more after the hearing.          However, he did not pursue

treatment beyond AA meetings until discovering the PSI recommended the
                                         5


minimum sentence. Shelledy’s alcohol problems are long-standing. His motion

did not demonstrate any reason outpatient treatment could not have been sought

earlier even if he did not receive a recommendation for inpatient treatment until the

end of April.     Shelledy’s motion did not demonstrate any other “good and

compelling cause” for continuance. The court did not abuse its discretion in

denying Shelledy’s motion to continue sentencing by four months. We affirm the

district court’s order.

       B.       Sentencing.   Shelledy claims the district court’s sentence was

imposed “on grounds or for reasons clearly untenable of to an extent clearly

unreasonable.”       The court sentenced Shelledy to the statutory five-year

indeterminate sentence and minimum fine prescribed for “D” felonies. See Iowa

Code § 321J.2(5).

       “Judicial discretion imparts the power to act within legal parameters

according to the dictates of a judge’s own conscience, uncontrolled by the

judgment of others.” Formaro, 638 N.W.2d at 725. We presume a sentence within

the statutory parameters is valid, and on review we only decide whether the

sentence imposed was unreasonable. State v. Hopkins, 860 N.W.2d 550, 554

(Iowa 2015). A PSI sentencing recommendation does not bind the court but is

simply a factor that can influence the sentencing decision. Id. at 557.

       In its analysis, the court acknowledged the reasons for encouraging a lighter

sentence. The court also noted this was Shelledy’s sixth OWI violation, Shelledy

had just completed parole the month prior to the instant offense, and that Shelledy

had undergone treatment at the DOC’s OWI facility twice, including in the spring

of 2017.
                                          6


       We find the court’s decision was not unreasonable under the circumstances

and it did not abuse its discretion. We affirm the sentence of the district court.

       AFFIRMED.
