                       IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0976
                               Filed June 21, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DALON LAMONT JOHNSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Timothy T.

Jarman, District Associate Judge.



       Dalon Johnson appeals his sentences, contending his right to personal

presence and allocution at sentencing were violated. APPEAL DISMISSED.



       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



       Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

        Dalon Johnson appeals his sentences following his guilty pleas to serious

assault and third-degree theft. Claiming that his rights of personal presence and

allocution at the sentencing hearing were violated, Johnson requests his

sentences be vacated and his case remanded for resentencing.            Because

Johnson has completely discharged his sentences, we dismiss his appeal as

moot.

        Johnson was charged by trial information with one count of serious

assault, in violation of Iowa Code §§ 708.1 and 708.2(2) (2016), a serious

misdemeanor, and one count of theft in the third degree in violation of Iowa Code

§ 714.1(4) and 714.2(3), an aggravated misdemeanor. Johnson pled guilty to

each count in separate undated written pleas of guilty.       Each written plea

indicated the prosecutor would recommend, among other things, that Johnson be

committed to jail for a period of thirty days. In each plea agreement, Johnson

acknowledged:

        This is a bargained plea and is based on the recommendations to
        be made by the prosecuting attorney, but I know that those
        recommendations are not binding on the Court and no one has
        guaranteed to me any specific sentence. I understand that the
        Judge is not bound by any plea bargain that I have entered into
        with the prosecuting attorney. I also know that the Judge may not
        follow the recommendation in the Plea Agreement and that my
        sentence may be either less or more severe than that called for in
        the Plea Agreement.

Johnson waived his right to a fifteen-day delay between the time of entry of his

plea and the date of his sentencing, see Iowa R. Crim. P. 2.23(1), and he asked

“that judgment and sentence be pronounced now and without delay.” The written

pleas were filed on May 13, 2016. Three days later, the district court entered an
                                           3


order of disposition accepting Johnson’s pleas and sentencing him to thirty days

in jail on each count to be to be served concurrently.              In this paper-plea

proceeding, Johnson was not present when the court accepted his pleas and

imposed the sentences.1 He filed his notice of appeal on June 8, 2016. On

February 2, 2017, the State moved to dismiss the appeal as moot. Johnson

resisted. The supreme court denied the motion on March 30, 2017, and allowed

the parties to address the mootness matter in their appellate briefs. The appeal

was transferred to this court on May 12, 2017.

       On appeal, Johnson argues his sentences should be vacated and the

case remanded for resentencing because the district court failed to afford him his

rights of personal presence and allocution at sentencing. A defendant has the

right to be present at sentencing. See Iowa R. Crim. P. 2.27(1); State v. Ezell,

No. 11-1530, 2012 WL 5954592, at *1 (Iowa Ct. App. Nov. 29, 2012). Iowa Rule

of Criminal Procedure 2.23(3)(d), provides, in part, that before the court

pronounces sentence “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.” A defendant can waive both the right to be present at

sentencing and the right of allocution. See State v. Shadlow, Nos. 11-2047, 11-

2048, 2013 WL 263340, at *1, *3 (Iowa Ct. App. Jan. 24, 2013). Our cases state

the waiver of the right to be present at sentencing is necessarily a waiver of the

right of allocution. See id. at *3.



1
 It is not clear from the order of disposition whether the prosecutor or defense attorney
were present when the pleas were presented to the court, and there is no record of the
proceeding, if there was in fact a proceeding.
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       In each case in which this court has concluded the defendant waived the

right of allocution, the defendant signed an express waiver of the right to be

present at sentencing and/or the right of allocution. See id. at *1, *3; State v.

Estlund, No. 15-1151, 2016 WL 1359056, at *1–2 (Iowa Ct. App. Apr. 6, 2016) (“I

waive the proceeding rights and my right to have the court address me

personally . . . I understand that I have the right to allocution which allows me to

address the Court personally and make a statement in mitigation of my

punishment in this case, as provided by Iowa Rule of Criminal Procedure

2.23(3)(d).”); State v. Culberson, No. 13-2049, 2015 WL 6509754, at *1 (Iowa Ct.

App. Oct. 28, 2015) (“I expressly waive my right to personally address the court

at the time of sentencing. I further agree that the court may impose sentence

without my being present.”); State v. Verbeek, No. 14-0534, 2015 WL 4936397,

at *1 (Iowa Ct. App. Aug. 19, 2015) (“[The defendant’s] written guilty plea

requested immediate sentencing, waived personal presence, waived filing a

motion in arrest of judgment, and acknowledged and waived his right of

allocution.”). The written guilty plea forms signed by Johnson are devoid of any

such waivers.2 Consequently, we conclude Johnson did not waive his right to be

present at sentencing.

       The State does not respond to the merits of the waiver issue but instead

contends that Johnson’s claim is moot because he has discharged his

sentences. Johnson does not dispute that he has discharged his jail sentences.

“A case is moot when judgment, if rendered, will have no practical legal effect

2
  Waiver of the fifteen-day delay between the plea and sentencing is not a waiver of the
right to be present at sentencing. State v. Daniels, No. 15-1601, 2016 WL 4803782, at
*1 (Iowa Ct. App. Sept. 14, 2016).
                                        5

upon the existing controversy.” Toomer v. Iowa Dep’t of Job Serv., 340 N.W.2d

594, 598 (Iowa 1983) (internal citation omitted).      Generally, discharge of a

sentence renders a challenge to the sentence moot. See Lane v. Williams, 455

U.S. 624, 631, (1982) (“Since respondents elected only to attack their sentences,

and since those sentences expired during the course of these proceedings, this

case is moot.”); Rarey v. State, 616 N.W.2d 531, 532 (Iowa 2000) (finding that a

challenge to a prison disciplinary action was rendered moot by absolute

discharge of prison sentence); State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975)

(finding challenge to propriety of work release revocation moot since defendant

completed his one-year jail term and was released); Cordova v. State, No. 10-

1458, 2013 WL 988898, at *3 (Iowa Ct. App. Mar. 13, 2013) (holding that even if

district court lacked authority to order defendant to complete assaultive behavior

class, defendant’s discharge of sentence rendered the challenge moot); State v.

Ennenga, No. 10-1490, 2011 WL 3480963, at *3 (Iowa Ct. App. Aug. 10, 2011)

(expiration of prison term rendered challenge to illegal sentence moot).

      Johnson counters with the “collateral consequences” exception to the

mootness doctrine. This exception applies “if a judgment left standing will cause

the appellant to suffer continuing adverse collateral consequences.” In re B.B.,

826 N.W.2d 425, 429 (Iowa 2013) (citing Sibron v. New York, 392 U.S. 40, 53-57

(1968)). He asserts he faces adverse collateral consequences that are sufficient

to warrant exception from the mootness doctrine. Specifically, he speculates that

had he been present at sentencing he might have persuaded the court to grant
                                            6


him a deferred judgment.3 The written guilty pleas make no suggestion nor even

hint of any request for a deferred judgment. Furthermore, Johnson makes no

effort to show he may have been eligible for a deferred judgment. Deferred

judgment is not available under many circumstances.                    See Iowa Code

§ 907.3(1)(a). That given the opportunity to exercise his right of allocution, “the

district court might have been persuaded to grant [Johnson] a deferred judgment”

is pure conjecture on Johnson’s part, and simply not the kind of showing required

to invoke the collateral-consequences exception to the mootness doctrine.

       Johnson also claims potential adverse collateral consequences under the

United States Sentencing Guidelines concerning calculation of “criminal history

points”—should he ever be convicted of a federal crime in the future. However,

while this consequence may be within the realm of possibilities, we find it to be

too attenuated and speculative to trigger the collateral-consequences exception

to the mootness doctrine.

3
  This court has held that discharge of a defendant’s sentence did not render moot his
claim the sentencing court abused its discretion by imposing rather than deferring
judgment and sentence. State v. Risius, No. 15-1365, 2016 WL 4543787, at *1 (Iowa
Ct. App. Aug. 31, 2016). Risius is distinguishable from the case at hand. There, as a
part of the plea agreement, the parties presented a joint recommendation that Risius
would receive a deferred judgment. Id. The court rejected the recommendation and
sentenced Risius to jail. Id. On appeal, she raised her claim, among others, that the
district court abused its discretion in not granting her a deferred judgment. Id. After the
appeal had been briefed and transferred to this court, the State filed a motion claiming
the appeal was moot since Risius had already discharged her sentence. Id. Risius
responded that her claim was not moot in light of the sentencing option of a deferred
judgment. Id. A panel of this court agreed. Id.
         Here, the facts are significantly different. There is nothing in this record to
indicate a deferred judgment was even available to Johnson. No presentence
investigation (PSI) report was prepared. He made no request for a deferred judgment.
The prosecutor did not recommend a deferred judgment. Johnson has not suggested
the sentencing court abused its discretion in failing to grant him a deferred judgment.
Johnson did not raise the deferred judgment issue on appeal. He raised the issue for
the first time in responding to the State’s motion to dismiss the appeal as moot.
Because of the significant differences in the two cases, we do not find Risius controlling
here.
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         Because Johnson has discharged his sentence, his appeal is moot. The

collateral consequences exception to the mootness doctrine does not apply here.

Consequently, we dismiss the appeal. See In re M.T., 625 N.W.2d 702, 704

(Iowa 2001) (stating as a general rule, an appeal will be dismissed when it is

moot).

         APPEAL DISMISSED.
