Summary
noting that the rules require defense counsel and defendant both be given the right to speak in mitigation of punishment
Summary of this case from State v. KlingenbergOpinion
No. 5-435 / 04-0718
Filed June 29, 2005
Appeal from the Iowa District Court for Washington County, Michael R. Mullins, Judge.
John Evans appeals from his sentence stemming from a conviction for operating while intoxicated, third-offense habitual offender; and driving while license revoked. CONVICTIONS AFFIRMED, SENTENCES VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Barbara A. Edmondson, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
John Evans appeals from his sentences stemming from convictions for operating while intoxicated, third-offense habitual offender; and driving while license revoked. We now vacate his sentences and remand for resentencing.
I. Background Facts and Proceedings.
On July 1, 2003, the vehicle Evans was operating was stopped after a Washington County Sheriff's deputy observed the vehicle driving in the median. Upon asking Evans to accompany him to his patrol car, the deputy observed the strong odor of alcohol emanating from Evans. Evans admitted he had been drinking earlier that evening and that his operating privileges had previously been revoked. He failed each field sobriety test administered, and the field breath test revealed Evans had a blood alcohol concentration exceeding the legal limit. Evans was arrested and transported to the Washington County Jail. The deputy invoked implied consent and requested a chemical test for alcohol, but Evans refused.
Evans was charged with (1) operating while intoxicated, third-offense habitual offender; and (2) driving while license revoked. A bench trial commenced on February 10, 2004, and the district court entered a verdict of guilty on each offense. The matter proceeded to sentencing on April 23, 2004 at which time the court ordered a term of incarceration not to exceed fifteen years and fines totaling $2,750.
Prior to pronouncing sentence, the district court received assurances from Evans's trial counsel that Evans had reviewed his presentence investigation (PSI) report and had no additions or corrections. The district court asked both trial counsel and Evans whether each knew of any legal reason why judgment and sentence should not be pronounced. Both trial counsel and Evans responded in the negative. After providing the State an opportunity to recommend a sentence, the district court afforded Evans's trial counsel the opportunity to make a record as to any mitigating evidence prior to pronouncing sentence. Trial counsel gave numerous justifications in support of his recommendation of probation. The district court, however, failed to afford Evans his personal right of allocution, as provided for in Iowa Rule of Criminal Procedure 2.23(3)( d). This omission by the district court now serves as the basis for Evans's appeal.
Iowa Rule of Criminal Procedure 2.23(3)( d) provides, in pertinent part, "counsel for defendant, and the defendant personally, shall be allowed to address the court where either wishes to make a statement in mitigation of punishment." (emphasis supplied).
II. Scope and Standard of Review.
We review defects in sentencing procedure for correction of errors at law. Iowa R. Crim. P. 6.4. "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure." State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003).
III. Discussion.
Evans acknowledges our prior case law does not require the sentencing court to mirror the language of rule 2.23(3)( d) in offering a defendant the opportunity to exercise the right of allocution, and that substantial compliance with the rule is sufficient. State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999). Evans simply argues that at no point prior to pronouncing sentence was he afforded such an opportunity. After reviewing the sentencing transcript, we agree. Although trial counsel availed himself of the opportunity to address the court on the subject of sentencing, our supreme court has held the right to allocution is personal to the defendant and will not be deemed exercised through counsel's mouth alone. State v. Craig, 562 N.W.2d. 633, 636-37 (Iowa 1997). The language of rule 2.23(3)( d) echoes the holding in Craig, indicating "counsel for defendant, and the defendant personally" shall have the opportunity to exercise the right.
The State, however, points to precedent that would suggest that despite the fact Evans was not afforded the opportunity to formally exercise his personal right to allocution, any error was rendered harmless because of the other sentencing procedures carried out by the district court. See State v. Patterson, 161 N.W.2d 736, 738 (Iowa 1968) (holding defendant was not denied right of allocution where the trial court carried on an extended question and answer colloquy with defendant himself, during which the defendant had ample opportunity to volunteer any information helpful to his cause or which would constitute reason for withholding sentence); 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); and State v. Jorden, 461 N.W.2d 356, 359 (Iowa Ct.App. 1990) (holding defendant was not denied his right to allocution where the judge and defendant engaged in a question and answer colloquy concerning defendant's opportunity to review and ability to understand the PSI report, and the judge asked both the defendant and the State if there was any reason why sentence should not be imposed).
Having reviewed the cases relied upon by the State in support of the sentence, we conclude the authorities cited by the State are distinguishable and therefore not controlling in the present appeal. In Cason, the sentence imposed was consistent with a plea agreement achieved through negotiations between the parties, and the defendant affirmatively stated his agreement with the proposed sentence. Cason, 532 N.W.2d at 757. In contrast, Evans and the State did not reach a plea agreement; rather Evans and the State proposed vastly different sentence recommendations at the time of sentencing. In this situation, the importance of the right of allocution is significantly heightened above a situation in which the defendant and the State essentially agree ex ante on the punishment to be imposed.
Evans's counsel argued a sentence of probation served at a half-way house would be appropriate given Evans's need for both substance abuse and mental health treatment. Counsel for the State, on the other hand, noted Evans's inability to respond to interventions and probation accommodations in the past, and therefore requested the maximum sentence of fifteen years on the operating while intoxicated charge.
In Patterson, the district court engaged the defendant in an extensive colloquy before a sentence was imposed. Patterson, 161 N.W.2d at 738. In the case now before the court, however, the district court inquired directly of Evans only whether he "was aware of any legal reason why judgment and sentence should not proceed today?" We will not presume that on the basis of this single question Evans was afforded a meaningful opportunity "to make a statement in mitigation of punishment." Iowa R. Crim. P. 2.23(3)( d).
Finally, in Jorden, a panel of this court held the defendant in that case "was given ample opportunity to volunteer any information helpful to his cause" based on (1) the extensive colloquy between the district court and the defendant concerning defendant's opportunity to review and his ability to understand the PSI, and (2) whether defendant personally knew of any legal reason why sentence should not be pronounced. Jorden, 461 N.W.2d at 359. While Evans's trial counsel did indicate to the district court that Evans had reviewed the PSI and had no additions or corrections to the document, the question was never posed to Evans directly as was the case in Jorden. Concededly, Evans and his trial counsel were both asked separately whether they knew of any legal reason why sentence should not be pronounced. However, that query did not request mitigating evidence from Evans, but rather was intended to elicit reasons to forestall the imposition of a sentence. Because Evans's right of allocution was infringed, we conclude the sentence in this case must be vacated. Liddell, 672 N.W.2d at 815. We affirm Evans's convictions, vacate his sentences, and remand to the district court for resentencing. CONVICTIONS AFFIRMED, SENTENCES VACATED AND REMANDED FOR RESENTENCING.
We continue to urge defense counsel to avoid the unnecessary time and expense of appeal by bringing to the attention of the district court any claimed errors that can readily be remedied in the trial court, such as the failure to afford the defendant a right of allocution involved in this case. See State v. Millsap, 547 N.W.2d 8, 10 n. 1 (Iowa Ct.App. 1996).