               IN THE SUPREME COURT OF IOWA
                               No. 13-1764

                        Filed December 12, 2014

                      Amended February 24, 2015

STATE OF IOWA,

      Appellee,

vs.

MARK AARON THOMPSON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Carol L.

Coppola (plea), District Associate Judge, and Odell G. McGhee II,

(sentencing), District Associate Judge.



      A defendant seeks further review of an opinion affirming his

sentence.   DECISION OF COURT OF APPEALS AFFIRMED IN PART

AND VACATED IN PART; DISTRICT COURT SENTENCE VACATED
AND CASE REMANDED WITH INSTRUCTIONS.



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

Gribble & Gentry, LLP, Des Moines, for appellant.



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

Attorney General, John P. Sarcone, County Attorney, and Andrea M.

Petrovich, Assistant County Attorney, for appellee.
                                    2

WIGGINS, Justice.

      The defendant entered into a plea agreement with the State and

proceeded to plead guilty to possession of a controlled substance. The

court accepted his plea and set sentencing for a later date. At the time of

sentencing, the court did not follow the recommendations in the plea

agreement.

      The defendant waived reporting of the sentencing hearing.        The

court failed to give its reason for the defendant’s sentence in the written

sentencing order. The defendant appealed. We transferred the case to

the court of appeals. The court of appeals relied on State v. Mudra, 532

N.W.2d 765 (Iowa 1995), and State v. Alloway, 707 N.W.2d 582 (Iowa

2006), overruled on other grounds by State v. Johnson, 784 N.W.2d 192,

197–98 (Iowa 2010).     It affirmed the sentence, holding the defendant

waived his appeal rights as to his sentence. The court of appeals also

held language in defendant’s petition to plead guilty did not require the

court to allow the defendant to withdraw his plea and therefore complied

with Iowa Rule of Criminal Procedure 2.10.

      On further review, we overrule our decisions in Mudra and Alloway

and hold a judge must give his or her reasons for the defendant’s

sentence either on the record at a hearing or in the written sentencing

order. From this time forward, a defendant does not waive his or her

right to an appeal when the defendant waives reporting of the sentencing

hearing and the judge fails to include his or her reasons for the sentence

in the sentencing order.      Additionally, we hold because the plea

agreement was not conditioned on the concurrence of the district court,

the court did not err in deviating from the plea agreement. Accordingly,

we affirm in part and vacate in part the decision of the court of appeals,
                                    3

vacate the defendant’s sentence, and remand the case to the district

court for further proceedings consistent with this opinion.

      I. Background Facts and Proceedings.

      On August 19, 2013, the State charged Mark Thompson with

possession of a controlled substance in violation of Iowa Code section

124.401(5) (2013). The State offered Thompson a plea deal and filed it

with the district court.   In exchange for a guilty plea to the offense

originally charged, the State agreed to recommend a sentence of sixty

days incarceration, a $625 fine, and no probation. Thompson accepted

the plea offer.   On October 10, he filed a petition to plead guilty.

Thompson’s petition stated the plea agreement stipulated the State

wanted sixty days in jail with no probation, but Thompson was free to

argue for less jail time at sentencing. On the same day, the district court

entered an order accepting the plea and set Thompson’s sentencing

hearing.

      On October 31, the district court sentenced Thompson. The only

record of the sentencing is a sentencing-order form filled out in pen by

the judge.     The form indicates Thompson waived reporting of the

sentencing hearing. The form also indicates the district court deviated

from the recommended sentence in the plea agreement.          The district

court sentenced Thompson to two years of incarceration with all but

fifteen days of the sentence suspended and placed Thompson on

probation for two years. 1 The court gave Thompson two days’ credit for

time served.



      The sentencing-order form does not indicate the judge imposed a
      1

fine. The plea agreement stated the fine would be $625, which is the
minimum fine for the charge.
                                      4

      However, the district court did not fill out the section of the

sentencing-order form regarding reasons for the court’s sentence, which

required the judge to check one or more boxes that the judge found

consistent with the reasons for the chosen sentence. This section of the

form reads as follows:

      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 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 mental health history
           Defendant’s family circumstances
           Maximum opportunity for rehabilitation
           Victim impact statement
           Defendant’s age and character
           Defendant’s employment
           The Plea Agreement
           ___________ [(left blank for the judge to fill in a reason)]

      On November 7, Thompson filed a notice of appeal, arguing the
district court erred by failing to state on the record the reasons for the

sentence imposed and that the district court improperly deviated from

the sentence agreed upon in the plea agreement.          We transferred the

case to the court of appeals. The court of appeals affirmed the sentence

because under current caselaw, Thompson “waived his appellate claim

that the court violated Iowa Rule of Criminal Procedure 2.23(3)(d)” by

failing to provide a record the court could rely upon to determine if an

abuse of discretion occurred. Thompson then filed this application for

further review, which we granted.
                                     5

      II. Issues.

      The first issue we must decide is whether a defendant who waives

reporting of sentencing and fails to provide a recreated record under Iowa

Rule of Appellate Procedure 6.806(1) or Iowa Rule of Criminal Procedure

2.25(1) waives error when the sentencing judge fails to indicate on the

written record the reasons for the sentence imposed.       We must also

decide whether the district court erred by failing to impose the sentence

agreed upon in the plea agreement.

      III. Scope of Review.

      We will reverse a decision of the district court when an abuse of

discretion occurs or there is some defect in the sentencing procedure.

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). When the district

court exercises its discretion on grounds or for reasons that were clearly

untenable or unreasonable, an abuse of discretion occurs. Id. We review

the court’s determination to accept or reject a plea agreement for abuse

of discretion. State v. Barker, 476 N.W.2d 624, 628 (Iowa Ct. App. 1991).

      IV. Appellate Review of a Sentence When the Defendant
Waives Reporting of the Sentencing Hearing and the District Court
Fails to Provide a Reason for the Sentence in the Written Record.

      The Iowa Rules of Criminal Procedure state a “court shall state on

the record its reason for selecting the particular sentence” it imposes on

the defendant. Iowa R. Crim. P. 2.23(3)(d). This requirement ensures

defendants are well aware of the consequences of their criminal actions.

See State v. Lumadue, 622 N.W.2d 302, 305 (Iowa 2001).               Most

importantly, the sentence statement affords our appellate courts the

opportunity to review the discretion of the sentencing court.         See

Alloway, 707 N.W.2d at 584 (“When a court is given discretion in

sentencing, a statement of the reasons for the sentence is necessary to
                                      6

allow appellate courts to determine if the discretion in imposing one form

of sentence over another form was abused.”).         The district court can

satisfy this requirement by orally stating the reasons on the record or

placing the reasons in the written sentencing order. See Lumadue, 622

N.W.2d at 304–05.

      In State v. Luedtke, the district court failed to state a reason for the

sentence imposed following the defendant’s guilty plea. 279 N.W.2d 7, 8

(Iowa 1979). In Luedtke we stated,

      (w)ithout question, articulation of the rationale undergirding
      a sentence would assist both trial court and the appellate
      court on review. The view that such a record is desirable
      has now been embodied in a rule which we view as
      mandatory. Iowa R. Crim. P. [2.23(3)(d)] now provides that
      “(t)he court shall state on the record its reason for selecting
      the particular sentence.”

Id. (internal quotation marks omitted). The court remanded the case for

resentencing. Id. at 9.

      In State v. Pierce, the defendant argued the district court’s failure

to state a reason on the record for the sentence imposed was error. 287

N.W.2d 570, 572 (Iowa 1980). We remanded the case for resentencing

based upon the district court’s failure to provide reasons for the

sentences on the record. Id. at 575. We came to the same result in State

v. Marti, 290 N.W.2d 570, 589 (Iowa 1980).

      We have also held when discretion is not at issue, the district court

should state the fact that it lacks discretion for the sentence imposed on

the record.   State v. Matlock, 304 N.W.2d 226, 228 (Iowa 1981) (“Trial

courts should comply with rule [2.23(3)(d)] and state the reason for the

sentence in every case. If the court has no discretion in sentencing, it

should so state.”).   Our rationale for this requirement was that there
                                     7

were practical reasons for the sentencing statement even when the

district court lacks discretion. Id. There we said:

      Other practical considerations in requiring a statement of
      reasons are as follows: a good sentence is one which can
      reasonably be explained; knowing why the court imposed a
      particular sentence is of value to corrections authorities; and
      the explanation has a possible therapeutic effect on a
      defendant, although this latter consideration has been
      questioned.

Id.

      Applying these principles, the court of appeals remanded a case for

resentencing where there was no transcript of the sentencing hearing

and the sentencing order indicated the sentencing court considered “the

circumstances of the offense and the defendant’s background,” when it

pronounced its sentence. State v. Cooper, 403 N.W.2d 800, 802 (Iowa Ct.

App. 1987). In reaching its conclusion, the court of appeals said “[t]he

present record, far from articulating the rationale behind the court’s

choice of sentence, states only generalized, vague considerations which

we may assume advise every court in making every sentencing decision.”

Id. The court of appeals aptly noted:

      First of all, we think that implicit in rule [2.23(3)(d)] is a
      determination that appellate courts should not be forced to
      rely on post hoc attempts at divining the district court’s
      motivation from the entirety of the record in order to
      determine if the district court abused its discretion. To
      answer the abuse of discretion question, an appellate court
      needs to know why a trial court acted in the way that it did,
      not why it might have done so.

Id. (citation omitted).

      Subsequent to Cooper, we did not overrule Luedtke and its

progeny, but added a new wrinkle to the issue. In Mudra, the defendant

pled guilty to domestic abuse and waived reporting of the sentencing

hearing. 532 N.W.2d at 766–67. We recognized we would not be able to
                                    8

make a determination of an abuse of discretion on the written record

provided and then found the lack of the reasons on the record was the

defendant’s fault for waiving the reporting of the sentencing proceedings.

Id. at 767. We failed to consider the mandatory nature of rule 2.23(3)(d)

and even the rule itself, but rather 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.” Id. We then held the defendant waived

error by waiving reporting of the hearing and affirmed the sentence even

though we did not know if the district court gave reasons for its

sentence. See id.

      Ten years later, we affirmed Mudra. See Alloway, 707 N.W.2d at

585–86.       There we said if the defendant waives reporting of the

sentencing hearing, the defendant can still establish a record on appeal

by means of a bill of exceptions as authorized by rule of criminal

procedure 2.25 or by filing a supplemental statement of the record

pursuant to rule of appellate procedure 6.10(3). Id. at 586. We again

urged our district courts to fastidiously give reasons for their sentences.

Id. at 587.

      Thompson urges us to enforce rule 2.23(3)(d) and remand the case

for resentencing because the district court did not give reasons for its

sentence in the written sentencing order.       To do so requires us to

overrule Mudra and Alloway because Thompson waived the reporting of

his sentencing hearing.

      We “recognize that the principle of stare decisis demands that we

respect prior precedent and that we do not overturn them merely

because we might have come to a different conclusion.” State v. Bruce,

795 N.W.2d 1, 3 (Iowa 2011).        However, we must revisit our prior
                                    9

decisions if those decisions are flawed and incompatible with present

conditions.   Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 117, 121

(Iowa 1973). Our rules state a judge shall state reasons, not that the

defendant shall request reasons. Iowa R. Crim. P. 2.23(3)(d). Further, it

is possible the defendant will not know the judge has failed to complete

the written sentencing order with reasons for the sentence at the time of

sentencing, while the judge is well aware the defendant has waived

reporting of the hearing. We want to reiterate:

      We recognize the time pressures facing busy judges in a
      high-volume court.       But defendants are not fungible
      commodities. They are entitled to be informed, preferably
      face-to-face, about the consequences of their criminal acts.
      Rule [2.23(3)(d)] and our prior cases require as much. The
      integrity of our system of justice demands it.

Lumadue, 622 N.W.2d at 305.

      We think the sounder interpretation of rule 2.23(3)(d) requires the

judge to include in his or her sentencing order the reason for the

sentence when the defendant waives the reporting of the sentencing

hearing. In this age of word processing, judges can use forms, such as

the one available in this case, to check the boxes indicating the reasons

why a judge is imposing a certain sentence. If the choices in the order

need further explanation, the judge can do so by writing on the order or

adding to the order using a word processing program. If the sentencing

order does not have boxes similar to the ones in this case, the judge can

use his or her word processor to insert the reasons for a particular

sentence.

      For these reasons, we overrule Mudra, Alloway, and the criminal

cases relying on these cases holding the defendant waives his or her right

to appeal a particular sentence when the defendant waives reporting of

the sentencing and the court fails to put reasons for the sentence in the
                                       10

written sentencing order. We also hold if the defendant waives reporting

of the sentencing hearing and the court fails to state its reasons for the

sentence in the written sentencing order, the court has abused its

discretion, and we will vacate the sentence and remand the case for

resentencing.   See Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind.)

(“One way in which a trial court may abuse its discretion is failing to

enter a sentencing statement at all.”), decision clarified on other grounds

on reh’g, 875 N.E.2d 218 (Ind. 2007).

      Accordingly, we must vacate Thompson’s sentence and remand the

case for resentencing. The rule of law announced in this case overruling

Mudra and Alloway shall be applicable to the present case, those cases

not finally resolved on direct appeal in which the defendant has raised

the issue, and all future cases.

     V. Whether the District Court Erred by Imposing a Greater
Sentence than Agreed to in the Plea Agreement.

      A. Error Preservation. The State contends Thompson waived his

right to attack his guilty plea because he failed to file a motion in arrest

of judgment after the court advised him of his right to do so.            We

disagree.

      Our rules provide:

      A motion in arrest of judgment is an application by the
      defendant that no judgment be rendered on a finding, plea,
      or verdict of guilty. Such motion shall be granted when
      upon the whole record no legal judgment can be
      pronounced.

Iowa R. Crim. P. 2.24(3)(a). A defendant must file a motion in arrest of

judgment not later than forty-five days after the defendant’s plea, “but in

any case not later than five days before the date set for pronouncing

judgment.”   Id. r. 2.24(3)(b).    Generally, if the defendant fails to file a
                                      11

motion in arrest of judgment, the defendant waives his right to challenge

the guilty plea on appeal.     Id. r. 2.24(3)(a).    One of the purposes of a

motion in arrest of judgment is to allow the defendant to challenge the

guilty plea proceeding prior to sentencing.         State v. Birch, 306 N.W.2d

781, 783 (Iowa 1981).

       The rule has no applicability to a situation, as in this case, where

the defendant does not know the deficiency in the plea proceeding until

after sentencing. Prior to sentencing, the court did not tell Thompson

that it was going to or not going to accept the plea agreement filed with

the court. Factually, it was not until the actual sentence that Thompson

became aware the court was not going to abide by the plea agreement.

Up to that time, Thompson had no grounds to challenge the plea

proceeding in district court.     Consequently, Thompson can raise this

issue on appeal without first filing a motion in arrest of judgment.

       B. Analysis. The rules of criminal procedure state:

       If a plea agreement has been reached by the parties the
       court shall require the disclosure of the agreement in open
       court at the time the plea is offered. Thereupon, if the
       agreement is conditioned upon concurrence of the court in
       the charging or sentencing concession made by the
       prosecuting attorney, the court may accept or reject the
       agreement, or may defer its decision as to acceptance or
       rejection until receipt of a presentence report.

Iowa R. Crim. P. 2.10(2).

       The rules also state:

       When the plea agreement is conditioned upon the court’s
       concurrence, and the court accepts the plea agreement, the
       court shall inform the defendant that it will embody in the
       judgment and sentence the disposition provided for in the
       plea agreement or another disposition more favorable to the
       defendant than that provided for in the plea agreement.

Id. r. 2.10(3).
                                   12

      Here the plea agreement was that the State would recommend a

certain sentence upon Thompson’s plea of guilty. Nowhere in the plea

agreement did it state the agreement required the district court’s

concurrence.   Factually, Thompson was aware the agreement did not

have the district court’s concurrence when he signed the petition to plead

guilty and acknowledged “[t]he court is not bound by the agreement and

may impose the maximum sentence as required by law.”

      Accordingly, neither the district court nor the State violated the

plea agreement requiring the court to allow Thompson the opportunity to

withdraw his plea before sentencing.

      VI. Disposition.

      For the reasons stated in this opinion, we affirm in part and vacate

in part the decision of the court of appeals, vacate Thompson’s sentence,

and remand the case to the district court for resentencing. Costs shall

be assessed to the State.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT SENTENCE VACATED AND

CASE REMANDED WITH INSTRUCTIONS.
