Opinion
No. 4-778 / 04-0371
Filed December 22, 2004
Appeal from the Iowa District Court for Iowa County, L. Vern Robinson, Judge.
Defendant-appellee, Tyson Marshek, appeals his sentence after pleading guilty to theft in the third degree in violation of Iowa Code section 714.1, 714.2(3), and 703.1 (2001), assault while participating in a felony in a felony in violation of Iowa Code section 708.3, and forgery in violation of Iowa Code sections 715A. 1 and 715A.2(2)(b). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, Emily Colby, Assistant County Attorney, Victoria Dominguez, Assistant County Attorney, Anne Lahey, Assistant County Attorney, for plaintiff-appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Defendant-appellee Tyson Marshek appeals his sentence following his entering of guilty pleas to theft in the third degree in violation of Iowa Code sections 714.1, 714.2(3), and 703.1 (2001), assault while participating in a felony in violation of Iowa Code section 708.3, and forgery in violation of Iowa Code sections 715A. 1 and 715A.2(2)(b). The district court entered judgment and sentenced defendant. On appeal defendant alleges that (1) he was not granted his right to allocution prior to pronouncement of the sentence, and (2) the district court erred by failing to suspend defendant's fine for the assault charge at sentencing after stating at the plea proceeding that the fine would be suspended.
I. BACKGROUND FACTS AND PROCEEDINGS
Defendant pled guilty to the charges of theft in the third degree in violation of Iowa Code sections 714.1, 714.2(3), and 703.1, an aggravated misdemeanor; assault while participating in a felony in violation of Iowa Code section 708.3, a class D felony; and forgery in violation of Iowa Code sections 715A.1 and 715A.2(2)(b), an aggravated misdemeanor. The charges were the result of the defendant taking money from a convenience store at knifepoint and defendant forging checks that he instructed others to deposit and then pay to him.
The district court entered judgment and sentenced defendant on the charges. On the charges of theft in the third degree and forgery, defendant was sentenced to terms of imprisonment of two years and assessed a fine of $500 on each count. On the charge of assault while participating in a felony, defendant was sentenced to a term of imprisonment not to exceed five years and assessed a fine of $7,500, which was later reduced to $750 by a nunc pro tunc order of the district court. The sentences of imprisonment were ordered to be served concurrently. Defendant appeals.
II. ANALYSIS.
Defendant first argues that the district court judge failed to grant his right to allocution prior to pronouncement of the sentence. We may address challenges to the legality of a sentence for the first time on appeal. Iowa R. Crim. P. 2.24(5)( a); State v. Dann, 591 N.W.2d 635, 637 (Iowa 1999); see also State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). Our scope of review of a district court's decision regarding sentencing is for an abuse of discretion or for defects in the sentencing procedure. State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995). Reversal for abuse of discretion is warranted only if the court's discretion has been exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
Iowa Rule of Criminal Procedure 2.23(3)( d) affords the defendant a right to make a statement in mitigation of punishment prior to pronouncement of sentencing. This right is known as the right of allocution and is mandatory. State v. Millsap, 547 N.W.2d 8, 10 (Iowa Ct.App. 1996). To comply with this rule, a district court must give a defendant an opportunity to volunteer information that would support his or her cause. State v. Duckworth, 597 N.W.2d 799, 801 (Iowa 1999). The court must do so during the sentencing proceeding and prior to sentencing, not during the guilty plea or postsentencing proceedings. See id.; State v. Craig, 562 N.W.2d 633, 636 (Iowa 1997). The court need not use any particular language to satisfy the provision. State v. Glenn, 431 N.W.2d 193, 194 (Iowa Ct.App. 1988).
Substantial compliance with the rule is sufficient. Duckworth, 597 N.W.2d at 800. "Substantial compliance is achieved as long as the district court provides the defendant with an opportunity to volunteer any information helpful to the defendant's cause." Id. "That is, as long as the court provides defendant with an opportunity to speak regarding his punishment, the court is in compliance with the law." Glenn, 431 N.W.2d at 195.
We conclude the district court substantially complied with Iowa Rule of Criminal Procedure 2.23(3)( d) by granting defendant his right to allocution. Prior to pronouncement of the sentence defendant was allowed make arguments in support of his pro se motion in arrest of judgment. In the midst of defendant making his arguments in support of his motion, the court twice asked whether there was any reason not to proceed with pronouncement of judgment and sentencing. The second time the court specifically addressed the defendant stating, "Okay. Mr. Marshek, besides — besides what you have told me today and besides what you have written, is there any other reason why I should not sentence you right now?" The defendant went on to continue to argue in support of his pro se motion in arrest of judgment.
After overruling defendant's motion the district court immediately pronounced judgment and sentence without stopping to, again, give defendant an opportunity to speak regarding his punishment.
The State argues the district court substantially complied with the rule. We agree. The district court twice offered defendant an opportunity to make a statement addressing whether his judgment and sentence should be pronounced. We deem this to be substantial compliance with Iowa Rule of Criminal Procedure 2.23(3)( d). See Craig, 562 N.W.2d at 635.
The second issue raised by defendant is whether the district court erred by not suspending defendant's fine at sentencing after stating that the fine for the charge of assault while participating in a felony, a class D felony, would be suspended at the guilty plea hearing. We determine that defendant has failed to preserve error on this issue. We may address challenges to the legality of a sentence for the first time on appeal. Iowa R. Crim. P. 2.24(5)( a); State v. Dann, 591 N.W.2d 635, 637 (Iowa 1999); see also State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). "Our cases are clear that, to be `illegal' for purposes of rule 23(5)(a), the sentence must be one not authorized by statute." Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).
At sentencing the district court imposed a fine of $7,500, which was later corrected to $750 by a nunc pro tunc order. The penalty for commission of a class D felony includes "a fine of at least seven hundred fifty dollars but not more than seven thousand five hundred dollars." Iowa Code § 902.9. Imposition of the $750 fine was not an illegal sentence. The defendant failed to preserve error on this issue; thus, we will not address the claim.