State of Iowa v. Michael James Kout , 2014 Iowa App. LEXIS 211 ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 3-1049 / 13-0037
Filed March 12, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL JAMES KOUT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve,
Judge.
Michael James Kout appeals his conviction for lascivious acts with a child.
AFFIRMED.
Michael Kout, Coralville, pro se appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, and Alan Ostergren, County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
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BOWER, J.
Michael James Kout appeals his conviction for lascivious acts with a child.
He claims the district court violated his equal protection rights by refusing to give
him credit for time served during his supervised pretrial release. Kout also claims
he received ineffective assistance of counsel. We find no provision in Iowa law
that would entitle Kout to credit for pretrial supervision, and also find he has failed
to show an equal protection violation. We preserve his ineffective-assistance-of-
counsel claims for postconviction relief. We affirm.
I. Background Facts and Proceedings
Michael James Kout was charged with sexual abuse in the second degree
on January 3, 2011. Kout entered a guilty plea to the reduced charge of
lascivious acts with a child on September 30, 2011. He was sentenced on
January 6, 2012, to serve an indeterminate ten-year prison sentence.
On October 31, 2012, Kout filed a motion requesting credit towards his
sentence for time spent on pretrial supervision. After being arrested and
charged, Kout posted bond and, as a condition of his release, was required to
report to the Seventh Judicial District Department of Correctional Services (DCS)
for pretrial supervision. He remained under DCS supervision for a total of 379
days. The district court denied his motion, finding Iowa law did not provide credit
towards one’s sentence for time spent on pretrial supervision. The district court
also rejected Kout’s equal protection claim.
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II. Scope and Standard of Review
We review issues of statutory interpretation for corrections of errors of law.
State v. Allensworth, 823 N.W.2d 411, 413 (Iowa 2012). Our review of claims
under the equal protection clause is de novo. In re L.M., 654 N.W.2d 502, 505
(Iowa 2002).
III. Discussion
A. Iowa Code Sections 907.3(3) and 901B.1
Kout claims that Iowa Code sections 907.3(3) and 901B.1 (2011), when
read together, entitle him to credit for time spent under pretrial supervision. He
also relies upon Anderson v. State, 801 N.W.2d 1 (Iowa 2011), to support his
argument.
Kout’s reliance on the cited authorities is incorrect. Section 907.3 gives
the district court certain sentencing options “upon a plea of guilty, a verdict of
guilty, or a special verdict upon which a judgment of conviction may be
rendered.” Iowa Code § 907.3. Section 907.3(3) allows for credit, in certain
circumstances, only when supervision is ordered as part of a criminal sentence.
Though Kout attempts to categorize his pre-trial supervision as a “sentence,” the
supervision Kout seeks to utilize as a source of credit is not a criminal sentence.
Pretrial supervision is not mentioned in section 907.3(3). Nor does Anderson
dictate a different result. Anderson does hold an individual is entitled to
sentencing credit when subject to supervision as a level two or level three
supervisee under section 901B.1; however Anderson applies exclusively to a
defendant on probation or parole, not an individual on pretrial release. See
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Anderson, 801 N.W.2d at 1-5. Nothing in Anderson converts sentencing credit
for time spent under supervision after conviction into sentencing credit for time
spent under pretrial supervision.
B. Equal Protection
Kout claims the district court violated the Equal Protection Clause of the
Iowa Constitution by refusing to grant him credit for time served under pretrial
supervision when other defendants who remain in jail before trial are granted
credit for time served. Kout primarily relies upon a district court decision from
Pocahontas County where a similar criminal defendant was granted the credit
Kout seeks.
“All laws of a general nature shall have a uniform operation; the general
assembly shall not grant to any citizen, or class of citizens, privileges or
immunities, which, upon the same terms shall not equally belong to all citizens.”
Iowa Const. art I, § 6. Our equal protection clause requires only that similarly
situated people be treated alike. Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa
2009). A demonstration that people are similarly situated is a threshold test;
failure to make this showing requires no further consideration of the alleged
equal protection violation. Id. Kout cannot pass this threshold test. Kout is not
similarly situated to criminal defendants who are confined to jail prior to trial. As
a defendant subject to a lower level of supervision before trial, he enjoyed
greater freedoms than criminal defendants confined to jail. Having failed to pass
this threshold requirement, we proceed no further with his equal protection claim.
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C. Ineffective-Assistance
Kout claims his trial counsel provided ineffective assistance by failing to
adequately argue his double jeopardy and cruel and unusual punishment claims
under the United States Constitution. We rarely address ineffective-assistance
claims on direct appeal. See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa
2006). The record provided does not allow us to assess the performance of
Kout’s trial counsel. Finding the record insufficient to address the claim, we
preserve Kout’s arguments for postconviction relief.
AFFIRMED.