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Swenka given maximum sentence

Judge accepts Alford plea, Swenka to serve two years
Zachary Swenka addresses the judge during his arraignment at the Johnson County District Court on Thursday, Oct. 24, for involuntary manslaughter in the 2011 death of Mackenzie Lown, 14. (photo by Liz Martin/The Gazette-KCRG)

IOWA CITY– Twenty-year-old Zachary Swenka has been sentenced to two years in prison for causing the death of 14-year-old Mackenzie Lown.
Swenka was charged with vehicular homicide and involuntary manslaughter when Lown was killed in the car Swenka was driving on Oct. 17, 2011, on U.S. Highway 6 near Tiffin.
Swenka’s plea hearing took place at the Johnson County Courthouse on Thursday, Oct. 24, presided by Judge Stephen Gerard. Swenka submitted a guilty plea to the charge of involuntary manslaughter.
However, after questions about the events surrounding the crash and a short recess, Gerard initially declined to accept Swenka’s guilty plea.
Gerard asked Swenka how fast he was driving at the time of the accident.
“The last I remember, about 60 miles per hour, your honor,” Swenka said. Swenka said he was “about 75 percent sure” of his speed.
Gerard asked if Swenka had been driving fast to show off for his friends, and Swenka replied that he was not. When asked if he was driving in a reckless manner, Swenka denied doing so, and asked if any of his passengers had expressed concern about how fast he was driving, Swenka replied, “No, your honor.”
Swenka’s answers during the line of questioning drew gasps and audible sobs from Lown’s friends and family members in the audience.
Swenka admitted driving the vehicle with Lown and four other passengers, all cross-country teammates returning to the Clear Creek Amana (CCA) high school after practice at Kent State Park. According to Iowa State Patrol accident investigators, Swenka, then 18, reportedly was driving at a high rate of speed through a curve in the road when his tires dropped onto the gravel shoulder. Swenka overcorrected and crossed the center line, then veered to the left in an attempt to avoid a head-on collision with Honda Odyssey minivan driven by Bryan Cooling of Oxford, but the minivan struck the left rear side of the Lumina. Lown, who was wearing a seatbelt at the time of the accident, was ejected from the vehicle. She was pronounced dead at the scene.
Daniel Brechtel, Dustin Cox, Chloe Keith and Claire Riggan were also injured, with Riggan transported to the University of Iowa Hospitals and Clinics by AirCare helicopter. Bryan Cooling and passenger Toni Cooling were also injured in the incident.
Following a lengthy investigation and review by Johnson County Attorney Janet Lyness, charges were filed against Swenka on Sept. 6, 2012, along with an arrest warrant.
Last Thursday, Lyness offered remarks that contradicted Swenka’s answers: that investigation reports indicated Swenka was traveling between 99 and 103 mph at the time of the crash; that witnesses testified they had asked him to slow down; and that he was “bragging about going over 100 miles per hour on the same stretch of highway,” Lyness said.
Gerard’s final question to Swenka was whether or not he believed the accident was caused by his driving at excessive speed.
“No, your honor,” Swenka replied.
After questioning, Gerard stated he would not accept Swenka’s guilty plea because he did not believe the defendant was admitting his guilt on a factual basis. Gerard said the court would enter a plea of not guilty on Swenka’s behalf.
The decision brought anguished cries from several people in the audience who were there to support Lown’s family.
After an hour-long recess during which Lyness and Swenka’s attorney Matt Adam discussed the case with Judge Gerard, the court reconvened.
“The defendant, through his attorney, has indicated his desire to continue with his guilty plea,” Gerard said, and the state agreed to accept his plea pursuant to the procedures established by Supreme Court case North Carolina v. Alford. An Alford plea indicates the defendant asserts innocence but admits that sufficient evidence exists which would likely convince a judge or jury to find the defendant guilty.
The punishment for involuntary manslaughter is a fine of up to $6,250 and up to two years in prison.
Sentencing began immediately after Gerard’s ruling. Lyness submitted into evidence photographs of the accident scene and a photograph of Mackenzie Lown, recommended the maximum sentence, then offered remarks to the court.
“This was a very dangerous situation that Zach Swenka created. It was of his own doing, it is not an accident that someone chooses to speed on a two lane highway,” Lyness said. “Part of the purpose of sentencing is to punish the offender but also to look at rehabilitation and deterrence for the community as well as for the defendant. We are asking for the maximum sentence possible because we feel the punishment is appropriate, it sends the message to the community that this is unacceptable, and to try to deter the defendant in his future behavior.”
Mackenzie Lown’s parents, Kelly Smith and Michael Lown, both gave emotional victim impact statements as well.
“Zach, I ask you the same question I wake up every morning asking,” Smith said through tears. “Why? You stole her every dream. You crushed our family. I want you to know I blame you for the actions that killed my daughter. Another part of me blames the school. I feel children should be safe while at school. He should never have had a choice to drive that day.” Smith said she felt Swenka should receive the maximum sentence and community service in hopes that other young drivers will learn from his mistake. “For me it feels like you are getting a slap on the wrist for what we’ve lost.”
Michael Lown also said Swenka should receive the maximum punishment.
“I was so proud of who she was. She was destined for great things until that day,” Lown said. “I know nothing here will change the past. I know even if the judge sentences you for the maximum of two years it’s hardly a tradeoff for our loss. As profoundly as you’ve changed my live, you’ve also changed the lives of hundreds more, so many friends and families affected by this.”
Lown said he feels there were others also culpable in Mackenzie’s death.
“Zach, your decision killed my daughter,” Lown said, “but there were others responsible as well; negligence and poor decision making on behalf of people who should know better.”
With 11 students killed in car accidents in 20 years, Lown said, “(the CCA school district has a) culture of driving fast. I want that culture changed, with you held responsible for your actions.”
Swenka’s attorney asked for a deferred judgment on his defendant’s behalf.
“Mr. Swenka respectfully requests the court defer judgment on the guilty finding. He acknowledges he is not a victim in this case. He made a horrible mistake he will have to live with for the rest of his life.”
Adam asked the court to consider other facts before sentencing.
“Mr. Swenka was 18 years old at that time, but he had only been driving for 30 days. The automobile in the accident he had only recently acquired from his sister. He was an inexperienced driver, and that led to what happened.”
Further, Adam said, Swenka was diagnosed with Attention Deficit Hyperactivity Disorder and his parents had not allowed him to drive when he was 16, like most other kids do, and had closely monitored his driving activities prior to the accident.
“The school was aware that he was a risk on the road to himself and others. He had not planned on transporting his classmates from cross-country practice. He was asked to do so.”
While not an excuse, Adam acknowledged, he said Swenka had voluntarily given up his driver’s license since the accident and hasn’t driven since.
“He is deterred, your honor.” Adam said Swenka, now 20, volunteers at church in hopes of someday becoming a youth minister, and plans to use his experience to teach children about the mistakes he made so they don’t get repeated.
“We believe a deferred judgment gives him the maximum opportunity for both rehabilitation and service to the community,” Adam said. He asked for a probationary period with court monitoring.
Finally, Swenka was allowed to give his own statement.
“Your honor and Mackenzie’s family, I take responsibility for my part in the accident and Mackenzie’s death. I never wanted this to happen. I’m sorry for pain I’ve caused everyone, especially Mackenzie’s family and friends. Mackenzie was a great teammate to us and I considered her one of my friends. I truly am sorry. Mackenzie’s death will be on my heart for the rest of my life,” Swenka said.
Gerard closed the session with Swenka’s sentencing.
“Hopefully as people in the community talk about this incident and tell their own children, that culture can change and people can understand driving a motor vehicle is an inherently dangerous thing, even when you are driving safely,” said Gerard.
“I have considered your age and the matters that Mr. Adams disclosed about you. I consider the incredibly dangerous driving behavior and aggravating circumstances, the disregard for the concerns of passengers, and the resulting death of Mackenzie Lown.”
Swenka was ordered to serve two years in an adult correction facility for a term not to exceed two years. His incarceration may be reduced by half through earned time, work credits and program credits.