Opinion
No. 5-363 / 04-1637
Filed June 15, 2005
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
The defendant appeals from the sentences imposed following his guilty pleas, contending he was denied his right to allocution. SENTENCES VACATED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
The defendant-appellant, Torey Smith, appeals from the sentences imposed following his guilty pleas, entered pursuant to a plea agreement, to five criminal charges. He contends the court abused its discretion by not allowing him to exercise his right to allocution prior to pronouncing sentence as required by Iowa Rule of Criminal Procedure 2.23(3)( d). He asks that we vacate his sentences and remand for resentencing to allow him to exercise his right to allocution. We affirm his convictions but vacate his sentences and remand for resentencing.
The defendant was charged with three class D felonies and two misdemeanors. Each felony carried a maximum sentence of five years in prison. Each misdemeanor carried a maximum sentence of one year. The defendant potentially faced seventeen years in prison if convicted on all charges and the court imposed the maximum sentences to be served consecutively. The defendant and the State reached a guilty plea agreement that the defendant would make an Alford plea to one felony charge, plead guilty to the other four charges, and the State would recommend the sentences run concurrently with each other, but consecutively to any sentence imposed in a probation revocation hearing scheduled about three weeks after the plea proceeding. The State agreed not to pursue habitual felon enhancements to the felony charges. The State acknowledged "the defendant was going to be free to argue both sentencing on this case and the probation matter." The court agreed to be bound by the agreement. The court asked counsel if sentencing was to be set over and heard at the same time as the revocation hearing. Defense counsel responded,
Your Honor, it was — it was our intention to proceed to sentencing on the understanding he was agreeing with the State's recommendation for five years prison to be consecutive to whatever happens in the revocations that he — that are pending.
The defendant indicated that was his wish.
During the guilty plea portion of the hearing the court engaged in a lengthy, detailed colloquy with the defendant. He agreed with the description of the plea agreement by his attorney and the prosecutor. During the discussion of possible maximum sentences, the court noted the potential for seventeen years in prison and fines of about $27,000. This exchange occurred:
Court: Do you understand that to be the case?
Defendant: Right. But am I hearing you right that I'm not accepting five years and a judge would have discretion to not accept that plea and sentence me to seventeen if you wish?
Court: No, because I've agreed to be bound by the plea agreement here.
Defendant: Okay.
Later in the guilty plea portion, the court noted a mandatory minimum jail term of two days on one charge.
Court: A two-day jail sentence. And you'll be given credit for any time that you've already served —
Defendant: Yeah.
Court: — as part of the sentencing order.
Defendant: I was hoping to get time served on it.
Court: Well, this will be all-included — the agreement is that you'll be sentenced to the term but you will be given credit for time served.
During neither the guilty plea portion nor the sentencing portion of the hearing did the district court specifically ask the defendant if he wished "to make a statement in mitigation of punishment" or any similar question.
Our review of sentencing procedures is for an abuse of discretion. State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). Such abuse will only be found if the district court's discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. Iowa Rule of Criminal Procedure 2.23(3)(d) requires that, prior to imposing sentence, "counsel for the defendant, and the defendant personally, shall be allowed to address the court where either wishes to make a statement in mitigation of punishment." (Emphasis added). Substantial compliance with the rule is sufficient. State v. Glenn, 431 N.W.2d 193, 194 (Iowa Ct.App. 1988).
The State argues that defense counsel's indication the defendant wanted to be sentenced the same day "on the understanding he was agreeing with the State's recommendation for five years prison" shows the defendant agreed with the sentence. It also argues, since the court agreed to be bound by the plea agreement, including the sentence, no purpose would have been served by asking the defendant if he had anything to say in mitigation of punishment. Hence, any error is harmless.
In determining whether there was substantial compliance with rule 2.23(3)( d), we "limit our review to the sentencing record" and do not consider the guilty plea portion of the hearing. State v. Duckworth, 597 N.W.2d 799, 801 (Iowa 1999). This is because "the rules of criminal procedure do not provide a mechanism for a defendant to speak in mitigation of punishment at a guilty plea hearing." Id. (quoting State v. Craig, 562 N.W.2d 633, 636 (Iowa 1997). "Rule [2.]22(3)( d) is a mandatory requirement for allocution." State v. Glenn, 431 N.W.2d 193, 195 (Iowa Ct.App. 1988). "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." Id. While we acknowledge the State's position that the defendant agreed with the sentence and received the sentence he agreed to, we cannot agree that failure to comply with rule 2.22(3)( d) is harmless. Accordingly, we affirm the defendant's convictions, but vacate his sentences and remand for resentencing.
We note that a defendant's express agreement with the sentence was a factor considered in finding harmless error in State v. Cason, 532 N.W.2d 755, 757 (Iowa 1995) (holding any failure to formally afford defendant his right to allocution was harmless where defendant affirmatively stated he agreed with the recommendation of sentence proposed by the State, the trial court on several occasions asked defendant whether he had any questions regarding his plea agreement or the sentencing recommendations, and defendant had several opportunities to state any objections to the proposed sentence).