Summary
In Stacy, defense counsel uttered one incomplete sentence about mitigating factors before the sentencing court interrupted and stopped him without providing another opportunity to raise mitigating factors.
Summary of this case from State v. StatonOpinion
No. 6-016 / 05-0475
Filed March 1, 2006
Appeal from the Iowa District Court for Scott County, Mary E. Howe, District Associate Judge.
Cedric Stacy challenges various aspects of his sentence in this matter. JUDGMENT AFFIRMED, SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrell Mullins, Assistant Attorney General, William E. Davis, County Attorney, and Marc Gellerman and Allen Havercamp, Assistant County Attorneys, for appellee-State.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Cedric Stacy pled guilty to assault causing injury. He was sentenced to one year in jail, with all but ninety days suspended "and no credit for any time served." On appeal, he contends the district court (1) denied his attorney the opportunity to speak in mitigation of his sentence and (2) inappropriately deprived him of credit for time served.
The court also imposed a fine and restitution, in an amount to be determined. These aspects of the sentence are not at issue.
1. Iowa Rule of Criminal Procedure 2.23(3)( d) states in part:
Prior to [rendition of judgment], 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.
The district court afforded Stacy an opportunity to speak, but interrupted defense counsel during his attempt to highlight mitigating factors. The pertinent dialogue was as follows:
[Defense counsel]: My client is currently a student, 24 goes to college —
The Court: Okay. Mr. Stacy, is there anything else you want to say before I impose your sentence? A: (Defendant indicates negatively.)
Stacy contends this dialogue did not amount to substantial compliance with rule 2.23(3)( d). The State counters that, earlier in the proceedings, the court asked defense counsel, "Okay. What would you like to say . . .?" and "[a]nything else you want to say?" These questions, in its view, satisfied the court's obligation under rule 2.23(3)( d). Stacy has the better argument.
Defense counsel was not allowed to complete his thought about mitigation of Stacy's sentence. The questions posed to him earlier and cited by the State came in response to defense counsel's attempts to clarify the record concerning the nature of the plea agreement and Stacy's criminal history. They were not invitations "to volunteer any information helpful to the defendant's cause." State v. Craig, 562 N.W.2d 633, 635 (Iowa 1997). Accordingly, we conclude rule 2.23(3)( d) was not satisfied. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).
2. Iowa Code section 903A.5 authorizes credit for time served during confinement in a county jail "at any time prior to sentencing, or after sentencing but prior to the case having been decided on appeal." The credit is to be made by the sheriff rather than the district court. State v. Hawk, 616 N.W.2d 527, 529 (Iowa 2000).
The district court denied Stacy credit for time served. The State concedes that "[t]o the extent the order prohibits credit for time served related only to this charge, it was in error." (Emphasis in original). The State further concedes a remand is necessary and a corrected order should be issued omitting reference to credit for time served. We adopt this recommendation.
We affirm Stacy's judgment but vacate the sentence and remand for resentencing.