State v. Moyer, 85-395

• Decision Date: 19 February 1986
• Docket Number: No. 85-395,85-395
• Citation: 382 N.W.2d 133
• Parties: STATE of Iowa, Appellee, v. Debra Jean MOYER, Appellant.
• Court: Iowa Supreme Court

Page 133

382 N.W.2d 133

STATE of Iowa, Appellee, v. Debra Jean MOYER, Appellant.

No. 85-395.

Supreme Court of Iowa.

Feb. 19, 1986.

Thomas M. Walter, of Johnson, Bauerle, Hester & Walter, Ottumwa, for appellant.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and Annette J. Scieszinski, Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, McGIVERIN, SCHULTZ, and WOLLE, JJ.

WOLLE, Justice.

Defendant Debra Jean Moyer appeals from the indeterminate five year prison sentence imposed by the district court following her guilty plea and conviction for operating a motor vehicle while under the influence of alcohol (OWI), third offense. Iowa Code § 321.281(2)(c) (1983). Defendant contends that the sentencing court erred in failing to order a presentence substance abuse evaluation, pursuant to a 1984 amendment to Iowa Code section 321.281(2)(c). We conclude that defendant had a statutory right to have a substance abuse evaluation made available to the sentencing court before sentence was imposed. Because no such evaluation was ordered, we vacate the sentence and remand for further proceedings in the district court.

When defendant was arrested on September 30, 1984, for operating a motor vehicle while intoxicated, she had already been convicted of OWI on two earlier occasions that year. Defendant initially entered a plea of not guilty, but she subsequently pleaded guilty as part of a plea agreement which required the county attorney to recommend a suspended sentence, probation, and alcohol treatment at the defendant's expense. The plea agreement was not conditioned upon the concurrence of the court in the county attorney's recommendation of a sentence. See Iowa R.Crim.P. 9 (defendant may withdraw guilty plea if sentencing court does not accept plea agreement which is conditioned upon a charging or sentencing concession). The district court accepted her guilty plea, adjudged her guilty of third-offense OWI, and ordered a presentence investigation, but the court did not order a substance abuse evaluation. At the time defendant was sentenced, the State fulfilled its plea agreement obligations by disclosing the terms of the agreement and recommending probation and alcohol treatment. The sentencing court, however, did not accept the county attorney's recommendation and instead imposed an indeterminate five year sentence of confinement.

Defendant contends that the trial court erred in imposing sentence without first ordering a substance abuse evaluation. She relies upon a 1984 amendment to Iowa Code section 321.281(2)(c), which in part provides:

On a conviction for a second or subsequent offense in violation of this section, the court shall order the defendant to undergo a substance abuse evaluation and the court may order the defendant to follow the recommendations proposed in the substance abuse evaluation for appropriate substance abuse treatment for the defendant.

1984 Iowa Acts ch. 1292 § 4 (emphasis added). Defendant contends that the evaluation provided for by that new statutory language was a mandatory prerequisite to sentencing, while the State responds with several arguments why the court was not required to order such an evaluation before sentencing.

In deciding this issue we must apply sound principles of statutory construction to ascertain what the legislature intended by its 1984 amendment of section 321.281(2)(c). See Iowa National Industrial Loan Co. v. Iowa State Department of Revenue, 224 N.W.2d 437, 439-40 (1974). We first scrutinize the above-quoted wording of the amended statute in the light of Iowa Code section 4.1(36)(a), which states that the word "shall" in a statute imposes a duty unless otherwise specially provided. The use in one sentence of the words "shall" and "may" emphasizes the distinction the legislature intended between the court's duty to order evaluation and the court's discretion in deciding whether to order treatment. The amended statute clearly obligated the district court to order this defendant, convicted of OWI third offense, to undergo a substance abuse evaluation.

The next question, however, is whether the prescribed duty to order an evaluation was so essential to the main objective of the amended statute as to be considered mandatory in nature, invalidating the subsequent sentencing proceedings. We have held that a statutory duty, though ordinarily considered mandatory, may be deemed directory if its performance merely assures order or promptness and is not essential to accomplishing the principal purpose of the statute. See Cooper v. State, 379 N.W.2d 917, 918 (Iowa 1986) (failure to draw jury in manner required by statute did not vitiate jury verdict); Taylor v. Department of Transportation, 260 N.W.2d 521, 522-23 (Iowa 1977) (failure to provide hearing within time prescribed by statute did not invalidate license revocation following delayed hearing).

We conclude that the court's duty to order substance abuse evaluation must be deemed mandatory, not merely directory. Before the statute was amended the sentencing court had the authority, but no duty, to order evaluation and treatment of alcoholism when a defendant had committed more than one OWI offense. Iowa Code § 321.281(4) (1983). The 1984 amendment was clearly designed to eliminate discretion on that matter and mandate a substance abuse evaluation for persons with two or more OWI offenses. Moreover, in amending section 321.281(2)(c), the legislature provided the court greater flexibility and more specific guidelines for ordering treatment recommended as a result of the required evaluation. The amended statute adds specific language providing that when a court, armed with an evaluation, orders the defendant committed for substance abuse treatment, the treating facility is to make regular reports to the court indicating how long the person should remain at the facility for treatment. See Iowa Code § 321.281(2)(c) (1985) (specifically referencing Iowa Code section 125.86 which provides for periodic reports to the court when a person is committed for substance abuse treatment). The amended statute also provides the district court specific authority to punish persons committed to treatment who fail to carry out the order of the court. Violators may be jailed, ordered to perform community service work, and placed on probation.

The State concedes in its brief that the Iowa legislature has given increased emphasis to evaluation and treatment of persons with substance abuse problems. We read amended section 321.281(2)(c) to further that objective by mandating a presentence substance abuse evaluation and encouraging court-ordered treatment whenever any person has been convicted of...