                    IN THE COURT OF APPEALS OF IOWA

                                       No. 14-1475
                                    Filed July 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JACOB THOMAS DITSWORTH,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, Michael

Dieterich, District Associate Judge.



       A   defendant      appeals    his   sentence.     CONVICTION   AFFIRMED,

SENTENCE VACATED, AND REMANDED FOR RESENTENCING.



       Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Amy Beavers, County Attorney, and Lisa Schaefer, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

        Jacob Ditsworth challenges the district court’s failure to engage in an in-

person colloquy with him concerning his plea to an aggravated misdemeanor.

He also challenges the court’s statement of reasons for the sentence.

   I.      Background Proceedings

        Ditsworth executed a written guilty plea to the crime of failure to comply

with the sex-offender registration requirements. See Iowa Code §§ 692A.103,

.111, .112 (2013).    The plea set forth the elements of the crime.      Ditsworth

attested he understood “the charge(s) against” him and “what the prosecution

would have to prove” if his case went to trial. Ditsworth also attested, “On or

about January 7, 2014 I moved from Cedar County, Iowa to Des Moines County.

I was required to register as a sex offender. I did not register with the sheriff

within 5 days of changing my residence.” Based on this attestation, Ditsworth

represented that his plea was supported by a factual basis. The plea additionally

contained a paragraph styled “Delay in Sentencing and Waiver of Presence,”

which stated, in part, “I [] understand that I have the right to be personally

present, in open court, and have a formal record made, for the taking of my guilty

plea, and the imposition of sentence.” The plea contained no explicit waiver of

this right but did give Ditsworth the option of waiving his presence at sentencing.

Ditsworth elected not to waive this right.

        The district court held no plea hearing but entered an “order regarding

plea,” confirming the written plea and scheduling a sentencing hearing.         At

sentencing, the State presented its recommendation and Ditsworth’s attorney

sought suspension of placement in a residential correctional facility. Ditsworth
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was given the opportunity to speak and stated he “never really changed [his]

mailing address.” He admitted he moved and suggested, because of his youth at

the time the registration requirement was imposed, he “wasn’t aware” he “was

supposed to change” his address when he moved.

         The district court sentenced Ditsworth to two years in prison, suspended

the sentence, placed him on formal probation, and required him to complete

programming at a residential correctional facility. In imposing sentence, the court

stated, “The reasons for my sentence are, obviously, to—that the registration law

is to protect the public, and it’s to protect the public and others from either

wrongfully registering or not registering at all.” Ditsworth appealed.

   II.      Analysis

            A. Ineffective Assistance

         Ditsworth contends his attorney provided “ineffective assistance . . . by

permit[ting] him to plead guilty” where “the district court failed to exercise its

waiver discretion or otherwise discharge[] its duty to ensure [his] plea was made

‘voluntarily and intelligently and has a factual basis.’” To prevail, Ditsworth must

show his attorney breached an essential duty and prejudice resulted. Strickland

v. Washington, 466 U.S. 668, 687 (1984).

         This court recently addressed the means by which a district court

determines the voluntariness of a plea to a serious or aggravated misdemeanor.

See State v. Sutton, 853 N.W.2d 284 (Iowa Ct. App. 2014). Citing Iowa Rule of

Criminal Procedure 2.8(2)(b), which prescribes the procedures for taking pleas,

the court stated:
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       Rule 2.8(2)(b) and the applicable case law give the court the
       discretion to waive an in-person colloquy with a defendant, with
       defendant’s approval, so long as a written guilty plea adequately
       provides the court sufficient information from which the court can
       make a finding that the plea is voluntarily and intelligently tendered,
       and that the court finds there is a factual basis for the plea. For us
       to rule otherwise would effectively deny the court the exercise of
       discretion the rule expressly provides. Because no in-person
       colloquy is required in serious and aggravated misdemeanor cases,
       we conclude the requirement that a defendant understand “[t]he
       nature of the charge to which the plea is offered” can be satisfied
       by a written guilty plea.

Sutton, 853 N.W.2d at 294. However, the court expressed the following caveats:

       [R]ule 2.8(2)(b) and the case law . . . do not require an in-court
       conversation for every serious and aggravated misdemeanor case,
       as long as the written guilty plea is adequate, the defendant waives
       presence, nothing else appears in the record to dilute the strength
       of the written guilty plea, the court exercises its discretion to waive
       the in-court colloquy, and the court is satisfied the plea is voluntarily
       and intelligently offered.

Id. at 288-89 (emphasis added).

       The State argues Sutton is controlling. On our de novo review of this

constitutional issue, we disagree.

       Ditsworth waived many rights associated with rule 2.8. He did not waive

the right to be addressed “personally in open court.”         See Iowa R. Crim. P.

2.8(2)(b).   He simply acknowledged he possessed the right.               Notably, he

expressly declined to waive his presence at sentencing. Under Sutton, waiver of

presence at a guilty plea proceeding is a prerequisite to dispensing with an in-

court colloquy. Sutton, 853 N.W.2d 288-89.

       Sutton was decided approximately two months before Ditsworth entered

his plea. Accordingly, Ditsworth’s attorney was charged with knowledge of its

requirements as well as its caveats and breached an essential duty in failing to
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challenge the absence of an in-court colloquy where there was no waiver of

presence contained in the written guilty plea form.

         We move to the prejudice prong of the Strickland test. Citing State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999), Ditsworth suggests prejudice is

inherent. In Schminkey, however, the issue was whether a factual basis existed

to support the plea. 597 N.W.2d at 788. Here, Ditsworth does not challenge the

existence of a factual basis but the district court’s failure to inquire about his

understanding of the plea. This issue requires proof of prejudice. See State v.

Straw, 709 N.W.2d 128, 137 n.4 (Iowa 2006) (noting limited circumstances under

which prejudice is presumed). Ditsworth must show a reasonable probability

that, but for counsel’s errors, he would not have pled guilty and would have

insisted on going to trial. See id. at 138.

         Ditsworth cannot make this showing. He admitted to understanding the

nature of the crime and the elements the State would have to prove if he went to

trial.   He also admitted to failing to register his new address.         Accordingly,

Ditsworth’s ineffective-assistance-of-counsel claim fails.

            B. Sentencing Reasons

         Ditsworth next contends the district court abused its discretion in failing to

articulate more detailed reasons for the sentence. The Iowa Supreme Court has

stated, “[a] sentencing court’s statement of its reasons satisfies the rule if it

recites reasons sufficient to demonstrate the exercise of discretion and indicates

those concerns which motivated the court to select the particular sentence which

it imposed.” State v. Garrow, 480 N.W.2d 256, 259 (Iowa 1992).
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       We have approved statements of reasons that are “terse and succinct.”

Id.   Nonetheless, the statement should “articulat[e] the rationale behind the

court’s choice of sentence.” State v. Cooper, 403 N.W.2d 800, 801 (Iowa Ct.

App. 1987).    This record contains no individualized statement of reasons.

Accordingly, we vacate the sentence and remand for resentencing.

       CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
