                       IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0977
                                  Filed May 1, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BROWN DENNIS,
     Defendant-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Linn County, Russell G. Keast,

District Associate Judge.



        Brown Dennis appeals the sentences imposed upon his two misdemeanor

theft   convictions.     SENTENCES        VACATED        AND    REMANDED         FOR

RESENTENCING.




        Sharon D. Hallstoos, Dubuque, for appellant.

        Thomas J. Miller, Attorney General, and Richard J. Bennett, Special

Counsel, for appellee.



        Considered by Doyle, P.J., Mullins, J., and Blane, S.J.*

        *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MULLINS, Judge.

       Brown Dennis appeals the sentences imposed upon his two misdemeanor

theft convictions. He argues the court abused its discretion in failing to articulate

adequate reasons for the sentences imposed.

       A jury convicted Dennis of one count each of third- and fifth-degree theft.

On the morning set for sentencing, Dennis filed a document entitled “consent to

waive presence immigration notice attorney fee notice.” The document was signed

by Dennis and defense counsel. In the document, Dennis waived, among other

things,1 his presence at sentencing so long as he was represented by counsel, the

creation of a formal record of the sentencing hearing if he was present at the

hearing with counsel, and his right of allocution. The record is unclear as to

whether Dennis attended the sentencing hearing. The court entered its sentencing

order the same day, which provided, in relevant part, the following:

              The reasons for this sentence include information provided
       the Court at sentencing and as set out in the court file herein,
       including the Defendant’s age, family circumstances, education, prior
       criminal record, the facts and circumstances of this offense, and the
       belief that this sentence will provide the greatest benefit to the
       Defendant and the community. The Court has also considered the
       parties’ plea agreement.

       A contention that a sentencing court failed to provide adequate reasons for

a sentence is immune from error-preservation defects. See State v. Thacker, 862

N.W.2d 402, 405 (Iowa 2015).        Iowa Rule of Criminal Procedure 2.23(3)(d)

requires a sentencing court to “state on the record its reason for selecting the

particular sentence.” The State concedes the “use of boilerplate language in a


1
  The document appears to be a waiver of rights in relation to both guilty pleas and
sentencing. As noted, however, Dennis was convicted by a jury.
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written sentencing order may be insufficient to comply with” the rule but insists this

case does not involve boilerplate sentencing language. Regardless of whether the

order used boilerplate language, the stated reliance on a plea agreement as one

of the factors considered by the court is unsupported by the record, as a plea

agreement was never reached in this case. The absence of facts to support a

factor upon which a court states it relied in its sentencing decision renders such

factor improper and constitutes an abuse of discretion.         See, e.g., State v.

Formaro, 638 N.W.2d 720, 725-26 (Iowa 2002); State v. Floyd, 466 N.W.2d 919,

924–25 (Iowa Ct. App. 1990); see also State v. Grandberry, 619 N.W.2d 399, 401

(Iowa 2000) (“If a court in determining a sentence uses any improper

consideration, resentencing of the defendant is required.”). Consequently, we

vacate the sentences and remand for resentencing. See Thacker, 862 N.W.2d at

407–08, 410; State v. Carrillo, 497 N.W.2d 497, 501 (Iowa 1999).

       SENTENCES VACATED AND REMANDED FOR RESENTENCING.
