By Lori Lindner
North Liberty Leader
IOWA CITY– A new attorney representing Zachary Swenka has filed an appeal to the Iowa Supreme Court and a motion for reconsideration of sentencing in Swenka’s criminal case.
Last Thursday, Nov. 21, documents were filed with the Sixth Judicial District Court and the Iowa Supreme Court by attorney Leon Spies, of Mellon & Spies of Iowa City. The motion requests that the two-year prison sentence imposed upon Swenka, after he pled guilty to involuntary manslaughter on Oct. 24, be reconsidered.
The motion is based on assertions that during the combined guilty plea and sentencing hearing on Oct. 24, the court– presided by Judge Stephen Gerard– relied on inaccurate or incomplete evidence concerning the circumstances of the offense and the characteristics of the defendant.
Swenka pled guilty to involuntary manslaughter as the driver of a vehicle that was involved in an accident on Oct. 17, 2011, that resulted in the death of 14-year-old Mackenzie Lown of Amana. Swenka was driving himself and five other students from the Clear Creek Amana (CCA) school district back to the school after a cross country team practice at F.W. Kent Park, about five miles down Highway 6 from the CCA high school, when his tires dropped onto the shoulder and he overcorrected, causing his Chevy Lumina to collide with a van traveling in the westbound lane. The state’s allegation was that Swenka was driving recklessly and at an excessive rate of speed.
Last month, the judge first rejected then accepted Swenka’s plea, calling it an Alford plea, which indicates the defendant did not admit guilt and asserts innocence, but admits there is sufficient evidence that a jury would likely find the defendant guilty.
But the motion for reconsideration claims the court was not furnished with important mitigating information relevant to a fair sentencing.
First, during the hearing, Gerard heard from prosecutor Johnson County attorney Janet Lyness that while Swenka said he did not remember how fast he was going before he lost control of his vehicle, witness testimony from a passenger in the vehicle was that the speedometer read 100 mph, and accident reconstruction by Iowa State Patrol office Robert Cox estimated his speed between 99 and 103 miles per hour. However, the newly-filed documents claim an independent review of the accident by a renowned reconstruction specialist determined that the Iowa State Patrol’s investigation was “seriously flawed,” and that the review indicates he was traveling at speeds between 69 and 77 miles per hour. That independent review was not furnished to the court.
Further, the motion states Swenka’s demeanor during the plea and sentencing hearing was affected by his own injuries sustained in the collision, as well as preexisting impairments.
The document filed by Spies does not explain the reference to preexisting impairments, and makes no mention of Swenka’s diagnosis or other health conditions, but indicates details could be furnished to the court at any time.
Finally, the motion indicates the court should have considered Swenka’s substantial family and community support detailed in numerous letters and reports, copies of which were not provided to the court. That supportive network of family and friends are ready to assist in Swenka’s rehabilitation, the motion states, and an appropriate program of probation supervision will expedite his rehabilitation efforts. Otherwise, a jail or community corrections facility offering work release privileges would provide an appropriate setting for accomplishing both correctional and rehabilitative goals.
Swenka is therefore requesting the court inquire into his evaluation and classification given during his confinement at the Iowa Medical and Classification Center, and that his prison sentence be reconsidered and suspended.
A hearing on Swenka’s reconsideration has been set for Dec. 16 at 2:30 p.m.