Opinion
No. 2-005 / 00-2095.
Filed April 10, 2002.
Appeal from the Iowa District Court for Johnson County, SYLVIA A. LEWIS, District Associate Judge.
Daniel Zwagerman appeals his judgment and sentence following a guilty verdict for operating while intoxicated, second offense. AFFIRMED.
Clemens Erdahl of Tindal, Erdahl, Goddard Nestor, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Donald Stanley, Assistant Attorney General, J. Patrick White, County Attorney, and Karen Egerton, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Daniel Zwagerman appeals his judgment and sentence following a guilty verdict for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2(2)(b) (1999). Zwagerman attacks the sufficiency of the evidence to support the guilty verdict, the trial court's denial of his motion for continuance, and the trial court's denial of his request for in-home detention. Zwagerman also contends his trial counsel was ineffective. Upon review we find this matter fits the criterion outlined in Iowa Court Rule 21.29. Accordingly, we affirm his conviction by memorandum opinion and preserve his ineffective assistance of counsel claim for possible postconviction proceedings.
Formerly Iowa Supreme Court Rule 9.
Sufficiency of the Evidence. The defendant claims there was insufficient evidence to show he was under the influence of alcohol while driving his car on March 17, 2000. We review Zwagerman's sufficiency of the evidence claim by considering the record as a whole, in the light most favorable to the State, to determine whether substantial evidence supports the verdict. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). The record reveals Zwagerman came to the attention of a state trooper after driving his car into a ditch. The trooper testified the defendant smelled of alcohol, his speech was slurred, and his eyes were bloodshot and watery. The jury viewed a videotape of Zwagerman's performance of three field sobriety tests, and heard the trooper's testimony as to why he failed all three. Zwagerman admitted drinking before driving on the night of his arrest. Following his apprehension, a breath test performed at the police station showed his blood alcohol content was over the legal limit.
Zwagerman admits he was intoxicated when his blood alcohol level was tested at the police station. However, he argues he consumed alcohol after his car slid off the road, and therefore, the State failed to prove he was intoxicated while he operated a motor vehicle. Zwagerman presented his version of the events to the jury. It is within the jurors' province to accept or reject witness testimony and to weigh the evidence as they see fit. State v. Fetters, 562 N.W.2d 770, 775 (Iowa Ct.App. 1997). Zwagerman never told the arresting officer he drank alcohol after driving his car off the road. The officer testified no alcohol was found in or near the defendant's vehicle. We find that when the evidence in this case is viewed in the light most favorable to the State, it is sufficient to support the verdict, in that it could convince a rational jury of Zwagerman's guilt beyond a reasonable doubt. See State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).
Motion for Continuance. Zwagerman next contends the district court erred in denying his request that trial be continued to enable him to obtain new counsel. Review of a motion for continuance is for abuse of discretion. State v. Miller, 480 N.W.2d 894, 895 (Iowa 1992). "A motion for continuance shall not be granted except upon a showing of good and compelling cause." Iowa R. Cr. P. 2.9(2). Motions for continuance are generally discouraged and a trial court is accorded broad discretion in ruling on such motions. State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983).
Formerly Iowa R. Crim. P. 8.1(2).
Zwagerman's request for continuance came on the morning of trial, after a jury panel had been called to the courthouse. The defendant wished to replace his trial counsel because of differences of opinion regarding the presentation of his defense and dissatisfaction with counsel's preparation for trial. The trial judge refused to continue trial. The record reveals Zwagerman had previously requested and been granted two continuances. The trial court's denial of Zwagerman's motion for continuance was appropriate considering both the recognized need for the fair and proper administration of justice and the history of the case. See United States v. Rankin, 779 F.2d 956, 958 (3d Cir. 1986). We conclude the trial court did not abuse its discretion in denying the defendant's eleventh hour request for a further to delay to replace an attorney he had worked with for more than five months.
Sentencing. Zwagerman also appeals the trial court's denial of his request for thirty days of in-home detention rather than the ten-day jail sentence imposed. Because the challenged sentence does not fall outside the statutory limits, we review the court's sentencing decision for an abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). An abuse of discretion is found only if the court's discretion has been exercised 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 sentencing judge stated that she was "not authorizing in-home detention as an alternative to a mandatory jail sentence." Zwagerman argues the trial court was under the mistaken impression it lacked the authority to grant his request for in-home detention under the circumstances. We note that the record at sentencing contains no indication that the Johnson County Sheriff has certified to the court that his jail has an in-home detention program, a prerequisite for the alternative sentence requested. Furthermore, we are not convinced that the trial court failed to exercise discretion in this case. The sentencing judge did not indicate she could not authorize in-home detention but that she was not authorizing in-home detention as an alternative to a mandatory jail sentence. We conclude the trial court imposed an appropriate sentence after considering the evidence produced at trial, the defendant's prior criminal history, and other proper sentencing factors.
Iowa Code section 356.26 provides in pertinent part: "The district court may also grant by order to any person held in a county jail the privilege of in-home detention if the county sheriff has certified to the court that the jail has an in-home detention program."
Ineffective Assistance of Counsel Claim. Zwagerman's final issue on appeal concerns the performance of his trial counsel. He contends his trial attorney did not properly prepare for trial in several respects. Generally, ineffective assistance of counsel claims are preserved for postconviction proceedings to allow trial counsel an opportunity to defend the charge. State v. Mulder, 313 N.W.2d 885, 890 (Iowa 1981). We find the record is inadequate to address Zwagerman's claims of ineffective assistance of counsel. Accordingly, we preserve his claims for possible postconviction proceedings so the facts can be further developed. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
AFFIRMED.