Opinion
No. 1-814 / 01-0635.
Filed January 28, 2002.
Appeal from the Iowa District Court for Des Moines County, DAVID B. HENDRICKSON, Judge.
Rodney Dale McDowell appeals the judgment and sentence entered upon his conviction for possession with the intent to deliver a controlled substance, cocaine base, in violation of Iowa Code section 124.401(1)(c)(3) (Supp. 1997). SENTENCE VACATED, CASE REMANDED FOR RE-SENTENCING.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Michael Bennett, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER, and VAITHESWARAN, JJ.
Rodney McDowell appeals from the judgment and sentence entered upon his conviction for possession with intent to deliver a controlled substance, cocaine base, in violation of Iowa Code section 124.401(1)(c)(3) (Supp. 1997). He claims the district court erred by not affording him an opportunity for allocution at his sentencing.
I. BACKGROUND FACTS AND PROCEEDINGS .
After a jury trial in 1999, Rodney McDowell was convicted of the following three offenses: delivery of a controlled substance, cocaine, and being a habitual offender, in violation of Iowa Code sections 124.401(1)(c)(2)(b) (Supp. 1997) and 902.8 (1997) (Count I); delivery of a controlled substance, cocaine base, and being a habitual offender, in violation of Iowa Code sections 124.401 (1)(c)(3) (Supp. 1997) and 902.8 (1997) (Count II); and possession with intent to deliver a controlled substance, cocaine base, while in immediate possession or control of a firearm, in violation of Iowa Code sections 124.401(1)(c)(3) and 124.401(1)(e) (Count III). The sentences imposed were ordered to be served consecutively. McDowell appealed, claiming the evidence was insufficient to establish his immediate possession and control of a firearm as charged in Count III.
On February 14, 2001, the Iowa Supreme Court reversed the judgment of the district court and remanded McDowell's case for re-sentencing on count III of the original trial information. The court held the evidence was insufficient to support a finding that the defendant had immediate possession or control of a firearm while possessing a controlled substance with intent to deliver as charged in Count III.
On remand the district court adjudged McDowell guilty of possession with intent to deliver a controlled substance in Count III. As directed by the supreme court, the district court did not apply the firearm sentencing enhancement provision of Iowa Code section 124.401(e). The sentencing court imposed a sentence not to exceed ten years. Again, this sentence was ordered to be served consecutively to the sentences imposed in Counts I and II.
McDowell filed a timely notice of appeal on his re-sentencing. His sole claim on appeal is that the district court erred by not affording him an opportunity for allocution at his re-sentencing.
II. THE MERITS .
According to Iowa Rule of Criminal Procedure 22(3)(a) a sentencing court is required to ask the defendant "whether he or she has any legal cause to show why judgment should not be pronounced against him or her." Subsection (d) of the rule further requires that prior to the court's rendition of judgment "counsel for defendant, and defendant personally, shall be allowed to address the court where either wishes to make a statement in mitigation of punishment." Iowa R. Crim. P. 22(3)(d). Together these requirements are referred to as a defendant's "right to allocution." State v. Craig, 562 N.W.2d 633, 635 (Iowa 1997).
Sentencing courts are not required to use any particular language to satisfy Rule 22(3)(d). State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999); Craig, 562 N.W.2d at 635. Substantial compliance has been deemed sufficient. Duckworth, 597 N.W.2d at 800. While no specific language is required, the questions by the sentencing court must be designed to elicit a statement regarding the defendant's punishment. Craig, 562 N.W.2d at 635. As long as the district court provides the defendant with an opportunity to speak regarding his punishment, the court is in compliance with the rule. Id.
Upon review of the record, we conclude the district court did not afford McDowell his right of allocution. The trial court and the defendant had a short discussion about McDowell's appeal, his appellate counsel, and the sentencing options available to the court on remand. After McDowell's attorney made a statement in mitigation of punishment, the trial court asked, "All right. Mr. McDowell, do you know of any reason why I should not proceed with the sentencing at this time?" The defendant responded, "No sir," and the court proceeded to sentencing. The court made no further inquiry which would provide the defendant the opportunity to address his punishment. McDowell did not speak in mitigation of punishment.
We believe our highest court has made clear that trial judges must leave no room for doubt that a defendant has been given the opportunity to speak regarding punishment. Craig, 562 N.W.2d at 637. We conclude the sentencing court's question whether there was "any reason why [it] should not proceed with sentencing" was insufficient standing alone to establish that the defendant was provided with an opportunity to personally address his punishment. The statements in mitigation of punishment made by McDowell's attorney do not by themselves substantially comply with Rule 22 because the right to allocution was personal to McDowell. Because McDowell was not afforded the opportunity to speak on his own behalf prior to sentencing, we vacate his sentence and remand for re-sentencing.
SENTENCE VACATED, CASE REMANDED FOR RE-SENTENCING.