                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0985
                            Filed February 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VICTORIA V. MORENO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Douglas C.

McDonald, Judge.



      Victoria Moreno appeals from her conviction and sentence for theft in the

fourth degree.     REVOCATION AFFIRMED, SENTENCE VACATED, AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

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

General, Michael J. Walton, County Attorney, and Dion Trowers, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, P.J.

       Victoria Moreno appeals from her conviction and sentence for theft in the

fourth degree. She asserts the district court erred in failing to provide sufficient

reasons for revoking the deferred judgment, either orally or in a written ruling,

which violated her due process rights. She further argues the court abused its

discretion for failing to state the reasons why it imposed the term of incarceration

and, additionally, erred in failing to reduce the fine imposed by an amount equal

to the civil penalty previously assessed following the underlying guilty plea.

       We agree the district court erred in failing to state the reasons for

imposing the sentence and in failing to reduce the fine. However, an adequate

factual basis for the revocation was present in the order, and therefore, Moreno’s

due process rights in this regard were satisfied. Consequently, we affirm the

revocation but vacate Moreno’s sentence and remand.

I. Factual and Procedural Background

       On December 14, 2012, Moreno was charged by trial information with

theft in the fourth degree, in violation of Iowa Code sections 714.1(1) and

714.2(4) (2011), based on conduct that occurred on November 23, 2012. 1

Moreno pled guilty on February 6, 2013, and on June 5, the district court entered

a deferred judgment along with assessing a $315 civil penalty.

       A review of the deferred judgment was held on June 6, 2014. The hearing

was unreported.     The district court revoked Moreno’s deferred judgment and

imposed a fine of $315. A pre-printed order was utilized, and the court checked

1
  Moreno, along with two juveniles, were in a department store. Both juveniles took
various items, collectively worth $324, and when stopped by security personnel, Moreno
told one of the juveniles to “run.”
                                         3


“failure to pay” as the reason the deferred judgment was revoked. Additionally, a

handwritten note next to this section stated: “[D]idn’t put prior T-5 on affidavit.”

The court sentenced Moreno to 120 days in jail, suspended, and two years of

probation.   No reasons were given as to why the district court imposed this

sentence.

      Moreno appeals both the imposition of the sentence and the revocation of

the deferred judgment. She argues the district court violated her due process

rights by failing to provide a sufficient statement showing either the reasoning or

facts and evidence supporting the revocation of the deferred judgment.         She

further asserts the court abused its discretion when it failed to state the reasons

for imposing the sentence.     The State responds it was Moreno’s burden to

provide a record, and because she failed to do so, she waived her first two

claims; however, it concedes the district court erred in failing to reduce the fine

by the amount of the previously-imposed civil penalty.

II. Standard of Review

      We review the district court’s decision to revoke a suspended sentence for

an abuse of discretion. See State v. Darrin, 325 N.W.2d 110, 113 (Iowa 1982).

Additionally, the imposition of a sentence is reviewed for an abuse of discretion.

State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).

III. Revocation

      The United States Supreme Court has held that due process rights must

be satisfied in revocation proceedings, though the procedures may be informal.

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). In line with this holding, the Iowa

Supreme Court has stated: “The findings of a court revoking probation must of
                                         4

course show the factual basis for the revocation.” State v. Hughes, 200 N.W.2d

559, 562 (Iowa 1972). While a formal written opinion with conclusions of law is

not required, either a written statement of reasons or a transcript showing the

basis for the revocation—that is, the facts and evidence on which the court

relied—is necessary to satisfy due process. State v. Lillibridge, 519 N.W.2d 82,

83 (Iowa 1994) (holding the district court failed to state a factual basis for the

revocation, either orally or in writing, and therefore due process required that the

judgment be vacated).

       As an initial matter, we do not agree with the State’s argument that,

because Moreno failed to request the proceedings be recorded or establish a

record pursuant to Iowa Rule of Appellate Proceedure 6.806, she waived the

argument she now asserts on appeal. See State v. Thompson, 856 N.W.2d 915,

920–21 (Iowa 2014) (holding that, even when a defendant waives his right to

have the sentencing hearing reported, it is nonetheless an abuse of discretion if

the sentencing court fails to state its reasons for the imposition of the sentence in

the sentencing order; consequently, the defendant did not waive his argument,

and the necessary remedy was to vacate the sentence and remand for

resentencing) overruling State v. Mudra, 532 N.W.2d 765 (Iowa 1985), and State

v. Alloway, 787 N.W.2d 582 (Iowa 2006).2

       Due process rights must be satisfied in criminal cases, even in a

proceeding revoking a deferred judgment.             Gagnon, 411 U.S. at 782.

Consequently, it is the State’s the burden to show Moreno’s due process rights


2
   The supreme court issued Thompson on December 12, 2014, after this appeal was
filed.
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were satisfied and that the proper factual basis was established when the court

revoked her deferred judgment. See Lillibridge, 519 N.W.2d at 83; Hughes, 200

N.W.2d at 562.       Therefore, Moreno has not waived the arguments she now

asserts on appeal.

       Nonetheless, Moreno cannot succeed on her due process argument. The

final judgment entered noted the fine owed and that zero dollars had been paid

by Moreno. Additionally, the court checked “failure to pay” as the reason for the

revocation and put a handwritten note beside the box stating “didn’t put prior T-5

on affidavit.” Moreno is correct in her assertion that a factual basis on which to

revoke the deferred judgment is needed in order to satisfy due process rights;

however, the form here and the facts entered on the form—however terse—are

enough to satisfy these rights under our case law. See Lillibridge, 519 N.W.2d at

83 (holding a calendar entry was not enough to satisfy the defendant’s right to

have a written statement showing the factual basis on which the court revoked

his probation, given all that was noted was that a hearing was held and probation

was “revoked”). Consequently, we conclude Moreno’s due process rights were

satisfied, and we affirm the district court’s revocation of the deferred judgment.

IV. Imposition of Sentence

       However, we agree with Moreno that the district court abused its

discretion when failing to state the reasons why it imposed the judgment of 120

days of incarceration, suspended, and two years of probation. We note that the

entry of the sentence was the final judgment in the criminal case and not part of

the civil revocation proceeding. See State v. Farmer, 234 N.W.2d 89, 90 (Iowa

1975). Therefore, the court was required to comply with the rules of criminal
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procedure.   Lillibridge, 519 N.W.2d at 83.     Iowa Rule of Criminal Procedure

2.23(3)(d) states the district court must provide reasons why it imposed the

sentence it selected.    A pre-printed form with boilerplate language does not

satisfy this rule. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). However,

that was the only record established here. Consequently, the district court did

not state its reasoning as to why it imposed the sentence of 120 days and two

years probation. We therefore vacate Moreno’s sentence and remand so the

district court may properly comply with the procedural rules. See id.

V. Civil Penalty

       Moreno also argues, and the State concedes, the district court erred in

assessing a fine without reducing it by the amount of the civil penalty imposed in

the original sentence. Pursuant to Iowa Code section 908.11(5) (2013), “if the

court revokes the probation of a defendant who received a deferred judgment

and imposes a fine, the court shall reduce the amount of the fine by an amount

equal to the amount of the civil penalty previously assessed against the

defendant.” In the original proceeding, the amount of the civil penalty assessed

against Moreno was $315, which she then satisfied by completing the QCLAM

class. In revoking the deferred judgment, the district court imposed a $315 fine

without reducing it by the amount of the civil penalty previously imposed.

Consequently, the district court imposed an illegal sentence when it assessed

this fine against Moreno, and we vacate this portion of the judgment. See State

v. Wade, 757 N.W.2d 618, 628 (Iowa 2008) (holding a judgment constitutes an

illegal sentence when it is not authorized by statute).

       REVOCATION AFFIRMED, SENTENCE VACATED, AND REMANDED.
