                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1838
                            Filed December 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN SHANE WESTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Appanoose County, Randy S.

DeGeest, Judge.



      Jonathan Weston appeals following conviction for domestic abuse assault

causing bodily injury. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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DANILSON, Chief Judge.

       Jonathan Weston appeals following conviction for domestic abuse assault

causing bodily injury, in violation of Iowa Code sections 708.1 and 708.2A(2)(b)

(2017).   His challenges are to the sentencing procedure and the sentence

imposed. Because Weston was allowed his right to allocution and his restitution

claim is premature, we affirm.

       Weston first asserts the trial court did not substantially comply with his right

of allocution. “Our review of sentencing procedures is for an abuse of discretion.”

State v. Nosa, 738 N.W.2d 658, 660 (Iowa Ct. App. 2007). “Such abuse will be

found only if the district court’s discretion was exercised on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” Id.; see also State v. Craig,

562 N.W.2d 633, 634 (Iowa 1997).

       A sentencing court is required under Iowa Rule of Criminal Procedure

2.23(3)(a) to ask the defendant whether he or she “has any legal cause to show

why judgment should not be pronounced against” him or her. Rule 2.23(3)(d)

requires that prior to the court’s rendition of 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.”             Together, these

requirements are referred to as a defendant’s right to allocution. See Craig, 562

N.W.2d at 635-37.

              Sentencing courts are not required to use any particular
       language to satisfy rule 2.23(3)(d). State v. Duckworth, 597 N.W.2d
       799, 800 (Iowa 1999); Craig, 562 N.W.2d at 635. Substantial
       compliance with the rule is sufficient. Duckworth, 597 N.W.2d at 800.
       “The important thing is whether the defendant is given an opportunity
       to volunteer any information helpful to the defendant’s case.” Craig,
       562 N.W.2d at 635. Therefore, as long as the district court provides
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       the defendant with an opportunity to speak regarding his
       punishment, the court is in compliance with the rule.

Nosa, 738 N.W.2d at 660.

       Here, the district court erroneously stated to Weston, “You don’t have the

right of allocution . . . .” But, in light of the unique circumstances presented here,

we do not remand for resentencing. The district court initially asked Weston

whether he knew “of any real reason why the court shouldn’t proceed to enter

judgment and do sentencing today,” and Weston answered, “No.” However, the

court did allow Weston to address the court on a number of occasions prior to the

court’s imposition of judgment, and Weston did so.           Weston explained his

employment, and he responded to the court’s questions about whether he had a

vehicle and whether he would be able to travel to complete the domestic abuse

program. Weston also informed the court about when his seasonal work would

begin and spoke of his lack of seniority in the arena-building company. Weston’s

counsel argued against the maximum 365-day sentence.

       The court announced it was imposing a sentence of 365 days, with all but

120 days suspended and credit for time served. Weston balked, stating, “I can’t

say anything?” Noting that it had already given him the opportunity, the court

asked, “Do you have something else you want to say?” Weston then did address

the court. The district court explained its reasoning and stated it “appreciated

[Weston’s] remarks,” and it reaffirmed that the sentence it had announced was

appropriate.

       This case is not like Nosa, where the defendant did not respond to the

court’s question, “Is there anything else you want to say?” See id. (“After reviewing
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the sentencing transcript, we agree [that Nosa was not afforded his right to

allocution personally]. Although trial counsel availed himself of the opportunity to

address the court on the subject of sentencing, our supreme court has held the

right to allocution is personal to the defendant and will not be deemed exercised

through counsel alone.”). It was error for the court to state Weston did not have a

right to allocution. Nevertheless, Weston’s right was not denied here, and Weston

exercised his right to allocute. See State v. Millsap, 547 N.W.2d 8, 10 (Iowa Ct.

App. 1996) (“As long as the defendant is provided an opportunity to speak about

the punishment to be imposed, the right is satisfied.”); State v. Ludley, 465 N.W.2d

912, 915 (Iowa Ct. App. 1990) (“Any comments you want to make at all regarding

this offense?”).

       Weston next asserts the sentencing order must be corrected because it fails

to conform to the oral pronouncement of sentence with respect to costs; that is,

the court did not orally state costs would be imposed, but the judgment order

indicated restitution would be required. Weston also asserts the court erred in

directing him to pay court costs and attorney fees without making a finding that

Weston had the ability to pay.

       We review restitution orders for an abuse of discretion. State v. Van Hoff,

415 N.W.2d 647, 648 (Iowa 1987). Constitutional issues are reviewed de novo.

State v. Dudley, 766 N.W.2d 606, 626 (Iowa 2009).

       During the sentencing hearing, the State asked the court to impose “all court

costs and all court-appointed attorney fees.” Weston did not object or suggest an

alternative amount. When entering judgment, the court asked defense counsel

whether there were court-appointed attorney fees, and counsel responded that his
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fees were “substantial . . . in excess of probably [$4000] or $5000.” The court then

ordered Weston to pay his attorney’s fees and stated, “[G]oing from a B to a serious

misdemeanor is a very successful case, but I think you should be responsible to

pay back the costs.” The district court’s written judgment ordered Weston to pay

an unspecified amount of court costs and court-appointed attorney’s fees. We find

no reason the district court must issue a nunc pro tunc.

       Weston asserts, “The portions of the district court’s sentence ordering

Weston to pay court costs and court-appointed attorney fees without any ability-

to-pay determination is statutorily and constitutionally unauthorized and illegal.”

The State counters that the challenge is “not ripe” because there is not yet a plan

of restitution. We agree with the State. See State v. Jackson, 601 N.W.2d 354,

357 (Iowa 1999) (stating until a plan of restitution is completed, “the court is not

required to give consideration to the defendant’s ability to pay”); State v. Swartz,

601 N.W.2d 348, 354 (Iowa 1999) (same).1

       AFFIRMED.




1
 We note any costs arising from counts I and III were assessed to the State by a court
order dismissing those counts prior to trial.
