
                        IN THE SUPREME COURT OF IOWA

                              No. 128 / 04-1080

                            Filed January 6, 2006


STATE OF IOWA,

      Appellee,

vs.

RUSSELL LYSLE ALLOWAY,

      Appellant.
________________________________________________________________________
      On review from the Iowa Court of Appeals.

      Appeal from the  Iowa  District  Court  for  Cedar  County,  David  E.
Schoenthaler, Judge.

      Defendant appeals, alleging the district court  erred  by  failing  to
provide reasons for the sentence imposed.   DECISION  OF  COURT  OF  APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      Linda Del Gallo,  State  Appellate  Defender,  and  Greta  A.  Truman,
Assistant State Appellate Defender, for appellant.

      Thomas J.  Miller,  Attorney  General,  and  Karen  Doland,  Assistant
Attorney General, for appellee.
CADY, Justice.
      This appeal requires us to again address a claim that  the  sentencing
court abused its discretion in failing  to  suspend  a  sentence  and  grant
probation in a case where the record fails to disclose the reasons  for  the
sentence.  We have previously urged trial courts to make  a  record  of  the
reasons for the imposition of a sentence, and we  again  do  so  today.   We
vacate the decision of the court of appeals, and  affirm  the  judgment  and
sentence of the district court.
      I.    Background Facts and Proceedings
      Russell Alloway filed a written  plea  of  guilty  to  the  crimes  of
possession of methamphetamine and possession of marijuana, in  violation  of
Iowa Code section 124.401(5) (2003),  on  May  4,  2004.   Both  crimes  are
serious misdemeanors, and Alloway was represented by counsel.   The  written
plea contained fifteen paragraphs and covered three  pages.   The  last  two
paragraphs included the waiver of certain sentencing rights.   In  paragraph
fourteen, Alloway waived his right to appear personally for  sentencing  and
to make a statement in mitigation of  punishment.   See  Iowa  R.  Crim.  P.
2.23(3)(d).  In paragraph fifteen, Alloway waived the  requirement  for  the
court to “state on  the  record  its  reasons  for  selecting  the  sentence
imposed.”  Id.  More specifically, paragraph fifteen stated:


           15.   I understand that the court would normally be required  to
      state on the record the reasons for selecting the sentence imposed and
      give up and waive the requirement that the court do so.

The district court accepted the written plea, but ordered Alloway to  appear
personally for sentencing notwithstanding the waiver of his right to do  so.

      Alloway eventually appeared for sentencing on July 2.  The  sentencing
proceedings were not reported, nor was any  plea  agreement  or  presentence
report made a part of the record.  See id. r. 2.10(2) (“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.”).
       Instead,  the  record  was  limited  to  the  written  judgment   and
sentencing order filed by  the  district  court  on  the  same  day  as  the
sentencing.  The court entered convictions against  Alloway  for  possession
of methamphetamine and possession of marijuana.  It also fined Alloway  $250
for each offense, revoked his driver’s license, and  sentenced  him  to  180
days in jail on each conviction, with the  sentences  to  run  concurrently.
The written order did not state any reasons for the sentences.
      Alloway appealed.  He claimed the district court erred by  failing  to
state on the record its reasons for  the  sentence.   He  also  claimed  his
trial  counsel  was  ineffective  for  failing  to  make  a  record  of  the
proceedings.  We transferred the case to the court of  appeals.   The  court
of appeals affirmed.  It found  Alloway  waived  the  requirement  that  the
court state its reasons for  sentencing  on  the  record.   The  court  also
rejected  Alloway’s  ineffective-assistance-of-counsel  claim,  finding   he
suffered no  prejudice.   Alloway  applied  for,  and  we  granted,  further
review.
      II.   Standard of Review
      We normally review  sentencing  decisions  for  abuse  of  discretion.
State v. Evans, 671 N.W.2d  720,  727 (Iowa  2003).   We  review  claims  of
ineffective assistance of counsel de novo.  State v. Philo, 697 N.W.2d  481,
485 (Iowa 2005) (citing State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005)).
      III.  Discussion
      Courts must follow many requirements in the imposition of  a  sentence
in a criminal  case  in  Iowa.   See  Iowa  R.  Crim.  P.  2.23(3)(d).   One
requirement is that the sentencing court “shall  state  on  the  record  its
reason for selecting the particular  sentence.”   Id.   On  one  hand,  this
reveals that  criminal  defendants  are  entitled  to  be  informed  of  the
consequences of their criminal acts.  State  v.  Lumadue,  622  N.W.2d  302,
304 (Iowa 2001).  Yet, the ultimate purpose of  the  reason-for-the-sentence
requirement is to give  appellate  courts  the  opportunity  to  review  the
discretionary nature of sentencing.  State v. Jacobs, 607  N.W.2d  679,  690
(Iowa 2000).  When a court is given discretion in  sentencing,  a  statement
of the reasons for the sentence is necessary to allow  appellate  courts  to
determine if the discretion in imposing one form of  sentence  over  another
form was abused.[1]
      The rule governing the court’s statement of  reasons  for  a  sentence
actually imposes two separate requirements.  The rule not  only  requires  a
statement of the reasons for the sentence be given by the  court,  but  also
that a record of the reasons be made.  The  court  can  satisfy  these  twin
requirements in one of two ways.  First, the  court  can  orally  state  the
reasons for sentencing at a  reported  sentencing  hearing.   See  State  v.
Johnson, 445 N.W.2d 337, 342-43 (Iowa  1989)  (the  sentencing  colloquy  is
part of the record).  Second,  the  court  can  place  the  reasons  in  the
written sentencing order.  Lumadue, 622 N.W.2d at 304; Johnson,  445  N.W.2d
at 343 (the sentencing order is part of the  record).   Ten  years  ago,  we
strongly encouraged trial courts to state the reasons for a sentence in  the
sentencing order when the sentencing proceeding is not reported.   State  v.
Mudra, 532 N.W.2d 765, 767 (Iowa 1995) (per curiam).  We  have  on  numerous
past occasions been required to remand  a  criminal  case  for  resentencing
when the reasons for the sentence were not established by the record.   See,
e.g., Lumadue, 622 N.W.2d at 304-05; Jacobs, 607 N.W.2d  at  690;  State  v.
Oliver, 588 N.W.2d 412, 415 (Iowa 1998); State  v.  Washington,  356  N.W.2d
192, 196-97 (Iowa 1984); State v.  Harrington,  349  N.W.2d  758,  763 (Iowa
1984), abrogated on other grounds by Ryan v. Arneson, 422 N.W.2d  491  (Iowa
1988); State v. McFadden, 320 N.W.2d 608, 618 (Iowa 1982); State  v.  Smith,
309 N.W.2d 454, 457 (Iowa 1981); State v. Wilson, 294 N.W.2d 824,  824 (Iowa
1980); State v. Marti, 290 N.W.2d 570, 589 (Iowa  1980);  State  v.  Pierce,
287 N.W.2d 570, 575 (Iowa 1980); State v. Luedtke,  279  N.W.2d  7,  8 (Iowa
1979).  This result is a waste of judicial time and resources.
      A defendant can, of course, waive any error by the district  court  in
failing to state the reasons for a sentence on the record.  See  Mudra,  532
N.W.2d at 767.  A  waiver  of  the  twin  requirements  of  rule  2.23(3)(d)
constitutes a waiver to a challenge to the sentence based  on  an  abuse  of
discretion.
      The  court  of  appeals  found  Alloway  waived  the  rule  2.23(3)(d)
requirement both in the written guilty plea and  by  failing  to  provide  a
record on appeal to support his claim of trial court error.   The  court  of
appeals also found Alloway failed  to  preserve  his  claim  of  ineffective
assistance of counsel by sufficiently explaining how he  was  prejudiced  by
the lack of a record.  We will address each issue separately.
      Our rules of procedure  permit  criminal  defendants  to  use  written
pleas of guilty in lieu of personal appearance before  a  court  in  serious
and aggravated misdemeanor cases.  See Iowa R. Crim.  P.  2.8(2)(b).   These
written guilty plea forms  often  contain,  as  in  this  case,  boilerplate
language that further waives appearance at sentencing.  See id.  r.  2.27(1)
(permitting a defendant to appear by counsel in court in  nonfelony  cases).

      In this case, the written  form  used  by  Alloway  contained  both  a
waiver of appearance at sentencing and a waiver that  the  court  “state  on
the record the reasons for selecting the sentence.”  Yet,  a  defendant  can
normally waive personal appearance before a court in indictable  misdemeanor
cases only with the approval of the  trial  court.  See  id.  r.  2.8(2)(b).
Here, the district court rejected Alloway’s written waiver and required  him
to personally appear for sentencing.  This action by  the  court,  in  turn,
served to vitiate Alloway’s earlier written waiver of  the  requirement  for
the court to state  on  the  record  the  reasons  for  the  sentence.   The
district court, having required Alloway to appear for  sentencing  after  he
filed a waiver of his appearance, was required to  follow  the  requirements
for sentencing under our rules unless Alloway provided a new waiver  of  the
requirement for the court to place the  reasons  for  the  sentence  on  the
record.  Under the circumstances, Alloway’s  written  guilty  plea  did  not
waive the requirement that the court state the reasons for the  sentence  on
the record.
      When the district court fails to state the reasons for a  sentence  on
the record so as to enable us to review a claim on appeal that the  district
court abused its discretion in sentencing, our remedy is normally to  remand
for resentencing.  Yet,  when  the  absence  of  a  record  of  the  reasons
includes the absence of a transcript of the sentencing proceeding, we  think
a different rule applies.  Although rule 2.23 requires  the  court  to  make
the sentencing record, a record is not solely within  the  province  of  the
district court.  Our rules of criminal procedure permit  a  defendant  in  a
criminal case to create a record by means of  a  bill  of  exceptions  under
rule 2.25 after sentencing, or by filing a  supplemental  statement  of  the
record under Iowa Rule of Appellate Procedure 6.10(3) after  an  appeal  has
been filed.
      In State v. Mudra, we held  that  a  defendant  waived  any  claim  of
sentencing error on appeal  by  failing  to  establish  a  record  when  the
district court failed to make a record.  Mudra, 532 N.W.2d at 767.  In  that
case, the defendant waived the reporting of  the  sentencing  proceeding  in
district court.  Id.  However, there  was  no  record  to  further  show  he
waived the requirement for the court to state the reasons for  the  sentence
on the record in the sentencing order.   See  id.  (stating  only  that  the
defendant “waived transcription of the proceedings”).  In other  words,  the
waiver of the reporting of the  proceedings  only  deprived  the  sentencing
court of one means to make the  required  sentencing  record,  but  did  not
prevent the court from satisfying its obligation to make a record  by  other
means—i.e., by stating  the  reasons  in  the  written  judgment  entry  and
sentence.  Thus, just as in this case, in Mudra,  there  was  no  record  to
show that the defendant waived  his  right  to  challenge  the  sentence  on
appeal by waiving the requirement for the court  to  give  reasons  for  the
sentence.  See id.  Notwithstanding, we held that the defendant  waived  his
right to challenge the sentence on appeal by failing to submit a  record  on
appeal disclosing the district court’s error when a procedure was  available
to the defendant to make such a record.  See id. at 767 (“[T]he  lack  of  a
record  on  this  appeal  is  Mudra’s  own  doing.   He  voluntarily  waived
transcription and then, having decided to appeal, made no attempt to make  a
record of the district  court  proceedings  under  Iowa  Rule  of  Appellate
Procedure 10(c) [now 6.10(3)] or by creating  a  bill  of  exceptions  under
Iowa Rule of Criminal Procedure 23.1 [now 2.25].”).
      Mudra requires us to reach the same result in this  case.   The  issue
raised on appeal concerns an abuse of  discretion  in  sentencing,  and  the
defendant must submit a record on appeal to disclose  the  error.   Id.   If
this record, once made, shows no  sentencing  reasons  were  given,  or  the
reasons were inadequate, we can  then  remand  for  resentencing.   If  this
record shows adequate reasons were given, we can decide the issue  presented
on appeal.   If  the  record  shows  the  defendant  waived  the  sentencing
requirement, we can affirm the district court’s sentence on that basis.   In
this case, Alloway failed to produce a record, and  his  failure  to  do  so
serves as a waiver of  “the  argument  that  the  district  court  erred  by
failing to state its reasons for the sentence imposed on  the  record”.   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.
      Notwithstanding, unlike the defendant in Mudra,  Alloway  claims  that
his counsel was ineffective for failing to submit a record on his behalf  to
support his claim on appeal.  Additionally, he claims he was  prejudiced  by
the failure of his attorney to create a  record  to  support  his  claim  of
error on appeal because the sentencing court did in fact have discretion  to
suspend the jail sentence imposed.
      Claims of ineffective assistance  of  counsel  on  direct  appeal  are
preserved for postconviction relief only if the defendant  makes  a  minimal
showing of the potential viability of  the  claim.   State  v.  Wagner,  410
N.W.2d 207, 215 (Iowa 1987).  This requires the defendant to show  the  need
to develop a further record, and to explain why the actions of counsel  were
ineffective and how those  actions  resulted  in  prejudice.   Id.   A  bald
assertion is insufficient.  Id.
      Alloway has failed to sufficiently articulate the prejudice  prong  of
his claim.  The existence of discretion  by  the  sentencing  court  in  the
imposition of sentencing does not explain how Alloway was prejudiced by  the
lack of a record of the reasons for not suspending  the  sentence.   Alloway
was required to allege some reason or some particular  circumstance  that  a
record in the case would have brought  to  light  to  support  an  abuse  of
discretion in the imposition of the sentence.  See People v.  Williams,  422
N.E.2d 199, 205 (Ill.  App.  Ct.  1981)  (“There  has  been  no  showing  by
defendant that he has, in fact, been prejudiced by the judge’s omission  and
there is no indication that the sentence imposed would have  been  different
had the court specified its reasons for the  sentence.”  (citing  People  v.
Brown, 412 N.E.2d 580 (Ill. App. Ct. 1980))).
      IV.   Conclusion
      We  conclude  Alloway  waived  his   claim   of   error   on   appeal.
Additionally,  Alloway’s   ineffective-assistance-of-counsel   claim   fails
because he failed to sufficiently allege or  show  prejudice.   Accordingly,
we vacate the decision of the court of appeals and affirm the  sentence  and
judgment of the district court.  Finally, we 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.
      DECISION  OF  COURT  OF  APPEALS  VACATED;  DISTRICT  COURT   JUDGMENT
AFFIRMED.
-----------------------
      [1]The  district  court  had   discretion   in   sentencing   Alloway.
Possession  of  marijuana  and  possession  of  methamphetamine   are   both
punishable by a term of imprisonment of two days to six months  and  a  fine
of $250 to $1000.  Iowa Code §§ 124.401(5), 903.1(1)(b)  (2003).   Moreover,
“[a]ll or any part of a sentence imposed . . .  may  be  suspended  and  the
person placed upon probation.”   Id.  §  124.401(5);  see  also  § 907.3(3).
This point is important to make because we have held  that  when  the  court
has no discretion in sentencing, any error in failing  to  state  sentencing
reasons is harmless.  See State v. Matlock, 304 N.W.2d 226, 228 (Iowa  1981)
(“In the present case, there could be  no  abuse  of  discretion  since  the
court lacked the power to enter a less severe sentence.  The  error  of  the
court in failing to state its reason did not harm defendant.  A  remand  for
resentencing could not change  the  sentence  required  under  the  relevant
statutes.”); accord State v. Cason, 532 N.W.2d  755,  756 (Iowa  1995)  (“In
State v. Snyder, 336 N.W.2d 728, 729  (Iowa  1983),  this  court  held  that
where the State and the defendant have approved a  plea  agreement  and  the
sentencing court incorporates the  plea  agreement  in  the  sentence,  ‘the
sentence  was  not  the  product  of  the  exercise  of  the  trial  court’s
discretion but of the process of giving effect to the  parties’  agreement.’
We went on to hold that  under  those  circumstances,  stating  reasons  for
imposition of sentence would serve no useful purpose,  and  any  failure  to
abide by the terms of rule 22(3)(d) was harmless.”).

