                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0464
                           Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HEATHER ANN KELLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      Heather Kelley appeals the revocation of her deferred judgment and

subsequent prison sentence, alleging a denial of her right to allocution and

insufficient reasons for the imposition of consecutive sentences. CONVICTIONS

AFFIRMED;       SENTENCES         VACATED        AND      REMANDED          FOR

RESENTENCING.



      Alexandra D. Frazier of McEnroe, Gotsdiner, Brewer, Steinbach &

Rothman P.C., West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



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

I. Background Facts and Proceedings.

      On June 20, 2014, Heather Kelley pled guilty to burglary in the third

degree, in violation of Iowa Code sections 713.1, 713.6A (2013); judgment was

deferred contingent on Kelley’s completion of two years’ probation. In July 2015

and December 2015, the Iowa Department of Correctional Services filed reports

alleging various probation violations, which were charged as crimes, including

making false statements, escaping, and possessing controlled substances.

      In March 2016, the court held a hearing on revocation of Kelley’s deferred

judgment. Kelley stipulated to the violations found in the December 2015 report

and filed written guilty pleas to the charges. The court accepted her pleas to

possession of a controlled substance (methamphetamine), in violation of Iowa

Code section 123.401(5) (2015); eluding, in violation of section 321.279; and

escape, in violation of section 719.4(3). For sentencing, Kelley entered into a

plea agreement, which contained provisions concerning prison sentences for

some charges and dismissals on others. The plea agreement provided that the

escape sentence would run consecutively to the burglary sentence, but it left

open for argument whether the escape sentence would run consecutively or

concurrently with the other sentences. In the plea agreement for the possession-

of-controlled-substances sentence Kelley agreed to imprisonment but left open

for argument whether that sentence would run consecutively or concurrently with

the other sentences.
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      The court revoked Kelley’s deferred judgment and probation and adjudged

her guilty of burglary in the third degree. The court and Kelley engaged in the

following exchange:

              THE COURT: All right. Ms. Kelley you do have the
      opportunity to speak with me. This is your right of allocution. So if
      there is anything that you would like to say to me right now, you are
      not required to, but if you’d like to make any comment to me with
      regard to what’s going on here, now is your opportunity.
              KELLEY: Your honor, I was given [substance abuse]
      evaluation. They had offered Bridges for my drug treatment. And, I
      mean, I don’t know with my escape or whatever, if that would be,
      like, an option or not, but—
              THE COURT: Well, you and your attorney have entered into
      an agreement with the State. And even though the agreement is
      not binding on the court, it’s my understanding, after having talked
      with your attorney and the attorneys on the other side, Mr. Crisp
      and Mr. Salami, assistant county attorneys, that you’ve had many,
      many options here over the course of—since you’ve been
      convicted in this—since your deferred judgment in this case. And
      that the Bridges folks are not going to accept you because of your
      escape from the women’s facility.

      The court ultimately imposed consecutive sentences for the escape and

burglary charges, per the plea agreement; it also imposed consecutive sentences

for the escape/burglary sentence and the possession sentence.                 All

misdemeanor sentences were to run concurrently. In total, the court sentenced

Kelley to an indeterminate term of seven years’ imprisonment.

      Kelley appeals.

II. Standard of Review.

      We review sentencing procedures for an abuse of discretion. See State v.

Duckworth, 597 N.W.2d 799, 800 (Iowa 1999) (citing State v. Craig, 562 N.W.2d

633, 634 (Iowa 1997)).    We also review the district court’s imposition of a
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sentence for an abuse of discretion. See State v. Hill, 878 N.W.2d 269, 272

(Iowa 2016).

       The court abuses its discretion when its decision is based on “clearly

untenable    grounds”    or    the   extent       of   discretion   exercised   is   “clearly

unreasonable.” Id. A district court's sentencing rationale is “untenable when it is

not supported by substantial evidence or when it is based on an erroneous

application of the law.” Id.

III. Discussion.

       A. Allocution Requirement.

       Kelley argues the court denied her right to allocution. Specifically, she

maintains that although she was given the chance to speak, the court truncated

her opportunity to complete her remarks.

       Iowa Rule of Criminal Procedure 2.23(3)(d) states, in pertinent part, that

prior to the court rendering a judgment, “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.” Although adherence to the

rule is mandatory, substantial compliance is sufficient. See State v. Glenn, 431

N.W.2d 193, 195 (Iowa 1997). “Substantial compliance is achieved as long as

the district court provides the defendant with an opportunity to volunteer any

information helpful to the defendant’s cause.” Duckworth, 597 N.W.2d at 800.

       Kelley contends the court denied her right to allocution when it interrupted

her statement. We disagree. The court allowed Kelley to make a statement and

she described a treatment option. The court responded that treatment was not

an option considering the plea agreement, Kelley’s history, and the nature of her
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offenses.   Nothing in the record indicates Kelley informed the court or her

counsel that she wished to continue her statement.

       The State, Kelley, and the court all acknowledged everyone had agreed to

the plea agreement, which contained prison sentences.

       Therefore, we affirm on this issue.

       B. Reasons for Consecutive Sentences.

       Kelley next contends the district court failed to provide reasons for

imposing consecutive sentences. Iowa Rule of Criminal Procedure 2.23(3)(d)

requires the court to “state on the record its reasons for selecting the particular

sentence.” This “ensures defendants are well aware of the consequences of

their criminal actions” and “affords our appellate courts the opportunity to review

the discretion of the sentencing court.” Hill, 878 N.W.2d at 273 (citation omitted).

Sentencing courts must “explicitly state the reasons for imposing a consecutive

sentence, although in doing so the court may rely on the same reasons for

imposing a sentence of incarceration.” Id. at 275. “In exercising its discretion,

the district court is to weigh all pertinent matters in determining a proper

sentence, including the nature of the offense, the attending circumstances, the

defendant’s age, character, and propensities or chances for reform. . . . [N]o

single factor alone is determinative.” State v. Johnson, 513 N.W.2d 717, 719

(Iowa 1994).

       In the sentencing colloquy, the district court stated the following:

              I have reviewed [the written plea] and find that I do accept it,
       and I’m sentencing you to a term of years in that case of—this is
       the possession of a controlled substance, to wit methamphetamine
       as alleged in Count I, and eluding in Count III.
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             I am going to sentence you to one year on each of those
      offenses, again, based on the nature and circumstances of the
      offenses, that being eluding and possession of a controlled
      substance, both serious offenses, especially while you were on
      probation.
             I’m entering that sentence to protect the public from further
      offenses by you. Also because of your criminal history, your
      substance abuse history, and all the reasons that I cited in the
      revocation matter. Probation denied for those reasons.
             The sentence in this case, SRCR291107, NTA070906,
      SMAC358430, STA070907, and STA0707908 shall all run
      concurrent with each other, but those sentences will run
      consecutive the sentence that is imposed in FECR274735.

      Here, the record indicates the court did not sentence Kelley based on only

one factor; the court noted the nature and circumstances surrounding Kelley’s

additional charges committed during her probation, her criminal history, her

substance abuse history, her mental health history, her need for rehabilitation,

her age and character, and the contents of the plea agreement itself. However,

the court did not provide separate reasons or refer back to those factors when

ordering her prison sentences to run consecutively. Additionally, it appears the

court gave effect to the plea agreements by sentencing Kelley accordingly;

however, the court did not make a record of the specifics of the plea agreement

nor did it indicate whether it had exercised any discretion with regards to the

sentences running concurrently or consecutively. See, e.g., State v. Thacker,

862 N.W.2d 402, 410 (Iowa 2015) (stating that “if the district court determines it

merely gave effect to the parties’ agreement and exercised no discretion in

sentencing other than to accept the plea agreement as advanced by the parties,

it should make the particulars of the plea agreement with respect to the sentence

a part of the record”). We therefore vacate that part of the sentencing order
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imposing consecutive sentences and remand for resentencing on that issue.

      CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED

FOR RESENTENCING.
