                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1447
                              Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ELISA MARIE HARPER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      The defendant appeals her sentence.          SENTENCE VACATED AND

REMANDED FOR RESENTENCING.



      Andrew J. Dunn of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

       Elisa Harper appeals the sentence imposed by the district court for her

conviction for fourth-degree theft.     She maintains the district court failed to

adequately state its reasons on the record for the sentence it imposed and asks

that we remand for resentencing.

       We review sentencing decisions for correction of errors at law. State v.

Letscher, 888 N.W.2d 880, 883 (Iowa 2016). “We will not reverse the decision of

the district court absent an abuse of discretion or some defect in the sentencing

procedure.” Id. (citation omitted).

       Harper was originally charged by trial information with extortion, a class “D”

felony. In a written guilty plea, Harper pled guilty to theft in the fourth degree. Her

written plea states that the plea agreement is “susp sent. prob w/ mental health

treatment and rest.” Sentencing was unreported, but the form sentencing order

establishes that Harper was sentenced to a suspended one-year sentence with

one year of probation and ordered to obtain a mental-health evaluation, follow

treatment recommendations, and make restitution.

       Under the section of the sentencing order that provides for “sentencing

considerations,” the court failed to check any boxes that indicate what factors the

court found significant in determining the sentence. The court also did not check

the “plea agreement” box.

       Harper maintains we should remand for resentencing because the court

violated its duty to provide reasons on the record for the sentence imposed. See

Iowa R. Crim. P. 2.23(3)(d). As she correctly notes, “[w]hen the defendant waives

the reporting of the sentencing hearing,” rule 2.23(3)(d) “requires the judge to
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include in his or her sentencing order the reason for the sentence” imposed. State

v. Thompson, 856 N.W.2d 915, 920–21. The State responds that the court need

not provide reasons for the sentence imposed because the court was merely giving

effect to the parties’ agreement. See State v. Cason, 532 N.W.2d 755, 757 (Iowa

1995). But such an argument misses the mark. The court was not bound by the

plea agreement, and it is unclear from the record before us if the court chose to

sentence Harper pursuant to the agreement or if the court exercised discretion in

imposing the sentence. We cannot assume the court gave effect to the agreement.

See State v. Thacker, 862 N.W.2d 402, 410 (Iowa 2015) (remanding to the district

court for resentencing when the district court remarked that it was sentencing the

defendant subject to the plea agreement but the agreement was not contained in

the record, preventing the appellate court from determining if sentencing had

actually taken place pursuant to the agreement). “Looking on the record, we do

not know whether the district court exercised its discretion, simply accepted the

parties agreement, or did a little of both.” Id.

       We cannot conclude the district court adequately stated reasons for its

sentence on the record as required by Iowa Rule of Criminal Procedure 2.23(3)(d).

Thus, we vacate the sentence and remand to the district court for resentencing.

       SENTENCE VACATED AND REMANDED FOR RESENTENCING.
