                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1764
                                 Filed June 25, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.


MARK AARON THOMPSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,

District Associate Judge.



      A defendant challenges the probationary sentence entered on his

conviction for possession of crack cocaine. AFFIRMED.



      Benjamin D. Bergmann of Parrish, Kruidenier, Dunn, Boles, Gribble &

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

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, John Sarcone, County Attorney, and Andrea Petrovich, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
                                         2



TABOR, J.

       This appeal joins the “myriad challenges” that arise when defendants are

sentenced without a record of the reasons for the chosen punishment.1 Mark

Aaron Thompson asks to be resentenced because the judge did not check any of

the fifteen available boxes on the sentencing form to show which factors were

“most significant” in determining his particular sentence. Citing State v. Mudra,

532 N.W.2d 765, 766-67 (Iowa 1995), the State contends Thompson waived his

claim by failing to provide this court with a record of the sentencing hearing

affirmatively disclosing a violation of Iowa Rule of Criminal Procedure 2.23(3)(d).

Being bound by Mudra, we affirm.

I.     Background Facts and Proceedings

       On July 11, 2013, Des Moines police officers stopped Thompson for

driving while barred. During the traffic stop, they found a rock of crack cocaine

on the driver’s seat.

       By trial information filed on August 19, 2013, the Polk County Attorney

charged Thompson with possession of a controlled substance, second offense,

an aggravated misdemeanor, in violation of Iowa Code section 124.401(5)

(2013). He entered a written guilty plea on September 26, 2013. As part of the

plea deal, the prosecution agreed to recommend a sentence of sixty days in jail,

while Thompson was free to ask for a sentence of thirty days or less. Neither the

State nor Thompson sought additional time on probation. On October 10, 2013,




1
 See State v. Alloway, 707 N.W.2d 582, 587 (Iowa 2006), overruled on other grounds by
State v. Johnson, 784 N.W.2d 192 (Iowa 2010).
                                         3



the court issued an order accepting Thompson’s guilty plea and setting

sentencing.

      According to the written sentencing order, Thompson appeared for

sentencing on October 31, 2013. A box was checked on the sentencing order

indicating: “Defendant waived reporting and record of the Sentencing Hearing.”

The sentencing order also contained the following paragraph:

             On inquiry, no legal cause has been shown to prevent
      sentencing on this date. Defendant was given an opportunity to
      speak in mitigation of the sentence. The following sentence is
      based on all of the available SENTENCING CONSIDERATIONS
      set out in Iowa Code Section 907.5. The court finds the following
      factors the most significant in determining this particular sentence:

      □   The nature and circumstances of the crime
      □   Protection of the public from further offenses
      □   Defendant’s criminal history
      □   Defendant’s substance abuse history
      □   Defendant’s propensity for further criminal acts
      □   Statutory sentence requirements
      □   Defendant’s statement
      □   Defendant’s family circumstances
      □   Maximum opportunity for rehabilitation
      □   Victim impact statement
      □   Defendant’s age and character
      □   Defendant’s mental health history
      □   Defendant’s employment
      □   The Plea Agreement
      □   ___________________________

      The district court did not check any of the boxes. The court sentenced

Thompson to two years in prison, with all but fifteen days suspended, a $625

fine, and two years of probation.        Unhappy with the probationary period,

Thompson appeals his sentence.
                                           4



II.    Standard of Review

       We review criminal sentences and compliance with Iowa Rule of Criminal

Procedure 2.23(3)(d) for correction of legal error. State v. Jason, 779 N.W.2d 66,

72 (Iowa Ct. App. 2009). We “will not reverse the decision of the district court

absent an abuse of discretion or some defect in the sentencing procedure.”

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not find an abuse

of discretion unless the defendant establishes the sentencing court exercised its

discretion for reasons clearly untenable or to an extent clearly unreasonable.

State v. Buck, 275 N.W.2d 194, 195 (Iowa 1979).

III.   Analysis

       A.     Reasons for Sentence

       Thompson first argues the district court erred in failing to give reasons for

imposing fifteen days in jail and two years probation.         See Iowa R. Crim. P.

2.23(3)(d) (“The court shall state on the record its reason for selecting the

particular sentence.”). He acknowledges “on the record” can mean delivering

reasons either in open court or in a written judgment entry. See State v. Jones,

817 N.W.2d 11, 24 (Iowa 2012). But he contends because he waived court

reporting and record of the sentencing hearing, the district court violated the rule

by leaving the check boxes blank on the written sentencing order.2



2
   Thompson does not acknowledge Mudra.              Instead he asserts his case is
“indistinguishable” from our court’s recent unpublished decision in State v. Jackson, No.
12-0861, 2013 WL 1223846, at *1-2 (Iowa Ct. App. Mar. 27, 2013). His assertion is
incorrect. Jackson waived not only his right to “have a court reporter make a verbatim
record” of the proceedings but also his “right to speak to the judge about punishment
and sentencing.” Id. at *1. It was not clear that Jackson had an exchange with the
sentencing judge. Id. at *2. If the defendant did not appear for a sentencing hearing,
                                              5



       The State counters that Thompson did not preserve error on his

sentencing claim because he waived court reporting of the sentencing hearing

and did not otherwise try to recreate the record for appellate review. The State

relies on Mudra where the supreme court rejected a defendant’s claim the district

court abused its discretion in failing to state reasons on the record. See Mudra,

532 N.W.2d at 766–67. The supreme court said it was unclear whether the

district court provided reasons for Mudra’s sentence during the proceedings and

declined to speculate as to what took place. Id. at 767. The court explained

Mudra “voluntarily waived transcription and then, having decided to appeal, made

no attempt to make a record of the district court proceedings by either a

supplemental statement of proceedings under Iowa Rule of Appellate Procedure

10(c) [now rule 6.806] or by creating a bill of exceptions under Iowa Rule of

Criminal Procedure 23.1 [now rule 2.25(1)].” Id. The court concluded the lack of

a record on appeal was “Mudra’s own doing.” Id.

       The State also cites to Alloway, where the supreme court followed Mudra,

finding the defendant could not show an abuse of the sentencing court’s

discretion when he failed to submit a record for appeal.                See Alloway, 707

N.W.2d at 586. Alloway parsed Iowa Rule of Criminal Procedure 2.23(3)(d) into

two separate requirements: (1) that the court state its reasons and (2) that the

court make a record of those reasons.             Id. at 584.     But the supreme court


there was no possibility the district court satisfied rule 2.23(3)(d) by orally giving reasons
for the sentence. The boilerplate reason given in Jackson’s written sentencing form was
inadequate to satisfy rule 2.23(3)(d), so we reversed and remanded. See State v.
Cooper, 403 N.W.2d 800, 802 (Iowa Ct. App. 1987) (case remanded for resentencing
because record was insufficient for review when no transcript was made and district
court stated insufficient reason for sentence in the sentencing order).
                                        6



recognized making a sentencing record is “not solely within the province of the

district court.” Id. at 586. The supreme court reiterated the two rules cited in

Mudra allow a defendant to recreate the record of a sentencing hearing where

court reporting was waived. Id. The Alloway decision ultimately explained: “As in

Mudra, we will not permit a defendant to raise an issue without attempting to give

us a record upon which we can decide the issue.” Id.

      In the instant case, the written order stated that Thompson appeared for

sentencing and was given the opportunity to speak in mitigation. As the supreme

court expressed in Mudra, we cannot speculate about what else happened at

that proceeding.   Under existing precedent, it was Thompson’s obligation to

produce a record supporting his claim that the sentencing court gave no reasons.

Showing on appeal that the sentencing court skipped the check boxes on the

written order was only half the battle. Thompson also needed to submit a record

showing the sentencing court failed to state any reasons at the hearing. Having

waived court reporting and transcription of the hearing, Thompson’s only options

were to prepare a statement of the proceedings under Iowa Rule of Appellate

Procedure 6.806(1) or a bill of exceptions under Iowa Rule of Criminal Procedure

2.25. See Alloway, 707 N.W.2d at 586; Mudra, 532 N.W.2d at 767. Not having

pursued either of these options, he waived his appellate claim that the court

violated Iowa Rule of Criminal Procedure 2.23(3)(d).

      While our decision is consistent with the holdings in Mudra and Alloway,

we realize the circumstances here do not represent best practices. The district

court knew Thompson waived reporting and record of the sentencing hearing, yet
                                          7



overlooked the opportunity to memorialize the reason it decided to place the

defendant on probation for two years—when doing so would have required no

more than checking the appropriate box on the form.

       In Mudra, the court stated: “We believe, and strongly advise, that the

better practice for a district court in situations where there is no transcription of

the proceedings is to always state sufficient reasons in the sentencing order.”

532 N.W.2d at 767.

       Ten years later—frustrated by a string of resentencing cases which

resulted in “a waste of judicial time and resources”—the Alloway court was

motivated to say:

              [W]e again urge district courts to fastidiously follow the
       reason-for-the-sentence requirements, absent a clear record
       supporting a waiver of the twin requirements, to head off the myriad
       challenges and claims that seem to arise when defendants are
       sentenced to incarceration without a record of the reasons for the
       sentence.

707 N.W.2d at 587.

       Now, eight years after Alloway, we still see a steady stream of appeals

challenging the lack of a record showing the reasons for sentencing.3 Many of




3
 See, e.g., State v. Myrick, No. 13-1054, 2014 WL 955907, at *1 (Iowa Ct. App. Mar. 12,
2014); State v. Fister, No. 13-0977, 2014 WL 957437, at *1 (Iowa Ct. App. Mar. 12,
2014); State v. Turner, No. 13-0181, 2013 WL 5745837, at *2 (Iowa Ct. App. Oct. 23,
2013); Jackson, 2013 WL 1223846, at *1; State v. McDowell, No. 12-0377, 2013 WL
104824, at *1 n.1 (Iowa Ct. App. Jan. 9, 2013); State v. Spurgeon, No. 11-1264, 2012
WL 2122465, at *2 (Iowa Ct. App. June 13, 2012); State v. Hoon, No. 10-1551, 2011 WL
2041581, at *1 (Iowa Ct. App. May 25, 2011); State v. Garcia, No. 09-1691, 2010 WL
5394833, at *1 (Iowa Ct. App. Dec. 22, 2010); Addison v. State, No. 09-1109, 2010 WL
4140439, at *4-5 (Iowa Ct. App. Oct. 20, 2010); State v. Strickland, No. 10-0494, 2010
WL 3503445, at *1-2 (Iowa Ct. App. Sept. 9, 2010); State v. Wisecup, No. 09-0469, 2009
WL 3337638, at *2 (Iowa Ct App. Oct. 7, 2009); State v. Bean, No. 05-1799, 2006 WL
1229998, at *1 (Iowa Ct. App. Apr. 26, 2006).
                                         8



these appeals originate in large urban counties with busy criminal dockets

reducing the likelihood the sentencing judge or participating attorneys could

realistically recall if reasons were given at an unreported hearing for purposes of

recreating the record under Iowa Rule of Criminal Procedure rule 6.806 or Iowa

Rule of Appellate Procedure 2.25(1).

       Given the recurring issue, it may be prudent for our supreme court to

revisit Mudra and interpret “on the record” in Iowa Rule of Criminal Procedure

2.23(3)(d) to require reasons for sentencing be set out in a written order if the

sentencing hearing is not reported. See State v. Bruce, 795 N.W.2d 1, 3 (Iowa

2011) (entertaining possibility of revisiting interpretation of language in criminal

procedure rules). But unless and until the supreme court decides to reconsider

its earlier cases, we are bound by their holdings.

       B.     Sentence Not Condition of Plea Agreement

       In his second assignment of error, Thompson argues he is entitled to

resentencing because the district court failed to “embody in the judgment and

sentence the disposition provided for in the plea agreement.”       We reject this

claim. The district court accepted Thompson’s plea without binding itself to any

particular sentence.   Thompson’s petition to plead guilty acknowledged “[t]he

Court is not bound by the plea agreement and may impose the maximum

sentence as allowed by law.” The district court did not commit error in issuing its

sentence.

       AFFIRMED.
