                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1736
                                 Filed June 25, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JACOB DOUGLAS FESKO,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



      The defendant appeals the sentence imposed following his plea of guilty.

AFFIRMED.



      Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,

Mason City, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Carlyle D. Dalen, County Attorney, and Rachel A. Ginbey. Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.

          Defendant Jacob Fesko appeals the sentence imposed following his plea

of guilty to the offense of operating while under the influence (“OWI”), third or

subsequent offense, in violation of Iowa Code section 321J.2 (2011). Fesko

contends the district court erred in failing to order Fesko to undergo a substance

abuse evaluation prior to sentencing, as required by Iowa Code section

321J.2(7)(a).     He also contends the district court abused its discretion by

imposing a sentence more severe than the jointly-recommended sentence

without first informing Fesko the court was not bound by the plea agreement. We

affirm.

                                         I.

          On March 4, 2013, Fesko pleaded guilty to the above-stated offense. The

district court set sentencing to occur on April 22, 2013, and ordered the Second

Judicial District Department of Correctional Services to prepare a presentence

investigation report (“PSI”). The district court also ordered Fesko to “undergo a

substance abuse evaluation at a licensed substance abuse agency of the

defendant’s selection” prior to the time of sentencing. There is nothing in the

record establishing Fesko completed the court-ordered substance abuse

evaluation. Fesko failed to appear for sentencing, and the district court issued a

bench warrant for his arrest. The matter finally came on for sentencing (and a

plea on another charge not material to this case) on November 1, 2013.

          The Iowa Code requires “a court to order a substance abuse evaluation

prior to sentencing a defendant on a second or subsequent OWI conviction.”
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State v. Weber, 545 N.W.2d 317, 318 (Iowa 1996). “One exception to this rule

occurs when the court receives the substantial equivalent of a substance abuse

evaluation . . . . We recognize another exception exists where . . . the public

interest in securing an evaluation has been fully served.” Id.

      We conclude the sentencing court substantially complied with the statute.

The leading case is State v. Ludley, 465 N.W.2d 912 (Iowa Ct. App. 1990). In

that case, we concluded there was substantial compliance with the statute when

the PSI contained the same type of information as a substance abuse evaluation,

the PSI was made available to counsel and the court prior to sentencing, and the

sentencing court “obviously gave consideration to [the defendant’s] substance

abuse problems, as shown from the . . . court’s sentencing statements.” Ludley,

465 N.W.2d at 914.      Similarly, in this case, the Department of Correctional

Services prepared a thorough PSI. The PSI provided the court with a significant

amount of information regarding Fesko’s substance abuse and treatment history.

The PSI reported Fesko entered into a Veterans Administration (“VA”) residential

treatment facility following the automobile accident giving rise to the instant

charge.   The defendant discharged from that program on October 30, 2012,

continued with aftercare, and remained under the care of a psychiatrist at the

Mason City VA clinic. The PSI was made available to counsel, the defendant,

and the court prior to sentencing. Neither the State nor Fesko recommended any

changes to the PSI, and Fesko explicitly stated the court could rely on the PSI in

imposing sentence. As in Ludley, the district court was aware of and obviously

gave consideration to Fesko’s substance abuse and treatment history—Fesko
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explicitly raised the issue during allocution, and the sentencing court discussed

the issue while pronouncing sentence.

       We also conclude the second exception to the general rule applies here:

the public interest in securing an evaluation has been fully served. See Weber,

545 N.W.2d at 318. First, the district court in fact ordered Fesko to obtain a

substance abuse evaluation. Fesko simply failed to do so and then failed to

appear at sentencing. The public’s interest is better served by proceeding with

sentencing despite the defendant’s non-compliance:

       While neither exception appears directly applicable here, we find
       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. 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 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.

State v. Breese, 581 N.W.2d 631, 632 (Iowa 1998) (quotation marks and citation

omitted).

       Second, no further public benefit could have been obtained by delaying

sentencing to prepare a substance abuse evaluation. See State v. Ruiter, 547

N.W.2d 226, 227 (Iowa 1996) (holding second exception was met where

defendant sought treatment and sentence contemplated treatment because “[n]o

further societal benefit could be obtained by ordering the district court to prepare

a substance abuse evaluation” under those circumstances). As in Ruiter, Fesko
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was aware of his need for treatment and wanted treatment. In fact, Fesko was

already treating with the VA. The court was aware of Fesko’s need for treatment.

While the court sentenced Fesko to a term of incarceration not to exceed five

years with a mandatory minimum of thirty days, the sentence also contemplated

release to a residential facility to continue substance abuse treatment.        The

judgment and sentencing order stated “the director of the department of

corrections may assign the defendant to an appropriate correctional facility until

there is sufficient space in a community residential facility.”          During the

sentencing hearing, the sentencing court expressly affirmed its hope that Fesko

would continue treatment with the VA.

       The failure to obtain a substance abuse evaluation prior to sentencing is

not grounds for reversal under the circumstances of this case. The sentencing

court had available to it the substantial equivalent of an evaluation. The failure to

obtain the evaluation was caused, at least in part, by the defendant’s non-

compliance with the court’s order. Further, the purpose of obtaining a substance

abuse evaluation was satisfied where Fesko sought treatment and was treating,

the court was aware of the treatment or need for treatment, and the sentence

embodied those concerns.

                                         II.

       Fesko contends the sentencing court abused its discretion in declining to

follow the sentencing recommendation and request of the parties. The district

court is free to impose any sentence within the statutory maximum, and we will

not reverse the sentence absent an abuse of discretion. See State v. Floyd, 466
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N.W.2d 919, 924 (Iowa Ct. App. 1990).           To establish the court abused its

discretion, Fesko must show the sentencing court exercised its discretion “on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).           The sentence imposed is

allowed by statute. Fesko has not established any abuse of discretion.

       Fesko also argues the sentencing court abused its discretion in not

advising Fesko the court was not bound by the plea agreement and in not

affording Fesko the right to stand on his plea or withdraw the same. There is no

indication in the transcript of the sentencing hearing that the plea was contingent

upon the sentencing court accepting the recommended sentence.                 Fesko’s

argument thus necessarily turns on the nature of the plea agreement (whether it

was conditional or not) and what the plea court told Fesko at the time Fesko

entered the plea. See State v. Barker, 476 N.W.2d 624, 626 (Iowa Ct. App.

1991) (stating “[i]f the plea bargain is conditioned on the court’s acceptance,” the

trial court “may defer its decision until it received the presentence report” or “[t]he

court may also inform the defendant it will not be bound by the plea agreement

and allow withdrawal of the plea”).

       The plea court accepted Fesko’s guilty plea on March 4, 2013. There is

no written plea agreement in the record.              There is a Court Reporter

Memorandum and Certificate in the record indicating the plea hearing was

reported. Fesko, however, has not ordered the transcript and provided it for our

review. We are unable to tell whether the plea was contingent upon the court

accepting and imposing the recommended sentence.              We are unable to tell
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whether Fesko was advised the court was not bound by the plea agreement and

nonetheless elected to stand on the plea. Quite simply, we are not at liberty to

speculate as to what occurred in front of the plea court.        Fesko’s failure to

provide necessary record in support of his claim requires the claim be denied.

See State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995) (“It is a defendant’s

obligation to provide this court with a record affirmatively disclosing the error

relied upon. We conclude that, by voluntarily failing to provide such a record,

[defendant] has waived error on his claim.”).

                                        III.

      For the foregoing reasons, Fesko’s sentence is affirmed.

      AFFIRMED.
