State of Iowa v. Lucas Kyle Daniels

IN THE COURT OF APPEALS OF IOWA
No. 15-1601
Filed September 14, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LUCAS KYLE DANIELS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, John C. Nelson,
District Associate Judge.
A defendant appeals his sentence claiming his right to allocution was
violated. CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
MCDONALD, Judge.
Lucas Daniels appeals following his guilty plea to domestic abuse assault,
second offense, an aggravated misdemeanor, in violation of Iowa Code section
708.2A(3)(b) (2015). He claims the sentencing court violated his right to
allocution.
Daniels filed a written guilty plea in which he asked the court to waive the
guilty plea procedures that required the district court to advise him, in person, of
his rights pursuant to Iowa Rule of Criminal Procedure 2.8. In the written guilty
plea, Daniels also waived his right to a fifteen-day delay between his guilty plea
and sentencing, and he asked “that judgment and sentence be pronounced now
and without delay at any place in the Third Judicial District of Iowa.” The same
day the guilty plea was filed, the district court entered a sentencing order
accepting the written guilty plea and committing Daniels to the county jail for 365
days, with 305 days suspended. The district court stated the reasons for the
sentence were “the facts shown to the court, the plea agreement, presentence
investigation or NCIC criminal history report and/or for reasons of deterrence.”
A defendant has the right to be present at sentencing. See Iowa R. Crim.
P. 2.27(1); State v. Ezell, No. 11-1530, 2012 WL 5954592, at *1 (Iowa Ct. App.
Nov. 29, 2012). Iowa Rule of Criminal Procedure 2.23(3)(d), provides, in part,
that before the court pronounces 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.” A defendant can waive both
the right to be present at sentencing and the right of allocution. See State v.
Shadlow, Nos. 11-2047, 11-2048, 2013 WL 263340, at *1, *3 (Iowa Ct. App. Jan.
3
24, 2013). Our cases state the waiver of the right to be present at sentencing is
necessarily a waiver of the right of allocution. See id. at *3. But the defendant
must actually waive the right to be present at sentencing for this rule to apply.
We conclude Daniels did not waive his right to be present at sentencing.
The written guilty plea only waived the fifteen-day delay between the plea and
sentencing. To say the language of this waiver is also a waiver of the right to be
present at the time of sentencing goes too far; the time and place requirements
are separate and distinct and have separate purposes. Waiver of one is not
waiver of the other. This is evidenced by custom and practice in the district court
where defendants frequently seek immediate sentencing, waive time between
plea and sentencing, but nonetheless exercise the right of allocution. In each
case in which this court has concluded the defendant waived the right of
allocution, the defendant signed an express waiver of the right to be present at
sentencing and/or the right of allocution. See id. at *1, *3; State v. Estlund, No.
15-1151, 2016 WL 1359056, at *1–2 (Iowa Ct. App. April 6, 2016) (“I waive the
proceeding rights and my right to have the court address me personally . . . I
understand that I have the right to allocution which allows me to address the
Court personally and make a statement in mitigation of my punishment in this
case, as provided by Iowa Rule of Criminal Procedure 2.23(3)(d).”); State v.
Culberson, No. 13-2049, 2015 WL 6509754, at *1 (Iowa Ct. App. Oct. 28, 2015)
(“I expressly waive my right to personally address the court at the time of
sentencing. I further agree that the court may impose sentence without my being
present.”); State v. Verbeek, No. 14-0534, 2015 WL 4936397, at *1 (Iowa Ct.
App. Aug. 19, 2015) (“[The defendant’s] written guilty plea requested immediate
4
sentencing, waived personal presence, waived filing a motion in arrest of
judgment, and acknowledged and waived his right of allocution.”). There is no
express written waiver here.
To be valid, a defendant’s waiver of the right to be present must be
knowing, intentional, and unambiguous. See State v. Lumadue, 622 N.W.2d
302, 304 (Iowa 2011). The waiver of right to delay sentencing does not
constitute a knowing, intentional, and unambiguous waiver of the right to be
present at sentencing and the right of allocution. See id. (finding that the
language “I waive personal conversation with the Court concerning this charge”
in a document waiving jury trial to be too ambiguous to knowingly and
intentionally waive the right to allocution); State v. Moore, No. 13-0223, 2014 WL
69541, at *1, *3 (Iowa Ct. App. Jan. 9, 2014) (finding defendant’s waiver of “his
right to a delay in sentencing and his right to file a motion in arrest of judgment”
in his written guilty plea was not a waiver of his right of allocution and failure of
the court to afford the defendant this right was reversible error); Ezell, 2012 WL
5954592, at *1 n.2 (“In [the defendant’s] written ‘Waiver of Jury Trial and
Stipulation to Trial on the Minutes of Testimony,’ [the defendant] waived his right
to allocution at sentencing. The document, however, does not specifically waive
[the defendant’s] right to be present at the sentencing hearing. We therefore
reject the State’s claim on appeal that [the defendant] waived his right to be
present at sentencing . . . .”).
5
Therefore we affirm Daniels’s conviction, but vacate his sentence and
remand for resentencing.
CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.
Vaitheswaran, J., concurs; Vogel, P.J., concurs specially.
6
VOGEL, Presiding Judge. (concurring specially)
I agree with the majority that the guilty plea should have contained
language specifically waiving the right to be present for sentencing, thereby
implicitly waiving the right of allocution. See State v. Shadlow, Nos. 11-2047, 11-
2048, 2013 WL 263340, at *3 (Iowa Ct. App. Jan. 24, 2013) (“Shadlow’s right of
allocution was an inseparable part of his right to be present for his sentencing
hearings, and he voluntarily chose to absent himself from those proceedings by
his written waiver. The court was entitled to proceed with sentencing as if the
defendant was present, and his right of allocution was forfeited.”). However, I
specially concur to note the inconsistency in Daniels’s position from district court
to appellate review.
Daniels signed a written guilty plea that waived his right to be present and
also specifically asked “that judgment and sentence be pronounced now and
without delay at any place in the Third Judicial District of Iowa.” Daniels’s waiver
of his right to be present in court for the acceptance of his plea, while at the same
time asking for immediate sentencing, seems incongruent with his complaint on
appeal that he was not afforded his right of allocution. Did he anticipate the court
would deny his request that sentence “be pronounced now and without delay”?
Adding to his request for immediate sentencing was the wide latitude he gave
that sentence could be pronounced “at any place in the Third Judicial District of
Iowa.”
The flaw appears to be more of a deficient plea form, now discovered on
appeal, rather than a true claim of the denial of the right of allocution at the time
of sentencing. Be that as it may, because the written guilty plea does not
7
explicitly acknowledge either the right to be present at sentencing or the right of
allocution, I agree with the majority the matter should be returned to the district
court for resentencing.