                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0442
                             Filed August 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANIEL ANTHONY HARDEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley,

District Associate Judge.



      Daniel Harden appeals following his guilty pleas to aggravated assault and

possession of a controlled substance (marijuana) second offense. CONVICTIONS

AFFIRMED, SENTENCES VACATED AND REMANDED FOR RESENTENCING.




      Rees Conrad Douglas, Sioux City, for appellant.

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

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

       Daniel Harden entered written guilty pleas to aggravated assault and

possession of a controlled substance (marijuana) second offense, both aggravated

misdemeanors.1 Harden waived his right to a sentencing hearing, and the district

court immediately imposed a jail sentence of thirty days on the assault conviction

and 180 days on the possession conviction, with 165 days suspended, to be

served concurrently with the assault sentence. The dispositional order stated:

“The sentence imposed in this case is based on the facts shown to the court, the

plea agreement, presentence investigation or NCIC criminal history report and/or

for reasons of deterrence.”

       On appeal, Harden argues “the sentencing order followed a template, a

boilerplate form,” which “tells us nothing about how the district court arrived at a

particular sentence in a particular case.” The State responds that “the district court

articulated its reasons for the sentence on the record, and these reasons were

both sufficient to support the sentence imposed and to allow for appellate review

of the decision.” We find Harden’s argument more persuasive.2

       “Iowa Rule of Criminal Procedure 2.23(3)(d) requires the district court to

‘state on the record its reason for selecting the particular sentence.’” State v. Hill,



1 A second assault charge was dismissed.
2 Harden entered his plea and was sentenced before the effective date of an
amendment to Iowa Code section 814.6, which—with limited exceptions—
eliminated the right of appeal from “[a] conviction where the defendant has pled
guilty.” See 2019 Iowa Acts ch. 140, §28 (codified at Iowa Code § 814.6(1)(a)(3)
(2020)). In any event, the Iowa Supreme Court recently held “that good cause
exists to appeal from a conviction following a guilty plea when the defendant
challenges his or her sentence rather than the guilty plea.” State v. Damme, 944
N.W.2d 98, 105 (Iowa 2020).
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878 N.W.2d 269, 273 (Iowa 2016). “We have rejected a boilerplate-language

approach that does not show why a particular sentence was imposed in a particular

case.” State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015).

       In evaluating the adequacy of the district court’s statement of reasons for

the sentences, we begin with the court’s reference to a “plea agreement.” The

standardized plea forms delineated the rights Harden would be waiving, listed the

statutory penalties for various crimes, and included short handwritten statements

describing the factual bases for the pleas.             The forms contained an

acknowledgment of Harden’s understanding that “the judge may not follow the

recommendation in the plea agreement and that [his] sentence may be either less

or more severe than the plea agreement recommendation.” However, none of the

written plea forms outlined the “plea agreement recommendation[s].” The State

concedes as much, stating “no written plea agreement appears in the record.” The

State’s concession and the absence of any indication that Harden’s sentences

memorialized a plea recommendation renders the reference to a “plea agreement”

meaningless. See id. at 410 (“[W]e do not know from the record whether the

particulars of the district court’s sentence were agreed to by the parties. Although

we know there is a plea agreement of some kind, the Petition to Plead Guilty to

Serious Misdemeanor is silent on the terms of the plea agreement. . . . Further,

even if there was an agreed upon recommendation for sentencing, we do not know

from the record whether the district court followed it in every particular or deviated

from it in some respects.”).

       The same holds true for the reference to a “presentence investigation.”

Although the plea forms stated the court could “take such additional time as the
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court requires” if the court wished “further presentence investigation,” the court did

not do so, and no presentence investigation report appears in the record. As for

the reference to “NCIC criminal history report,” that too does not appear in the

record.

       We are left with “and/or reasons of deterrence.” The “and/or” reference is

the equivalent of an unchecked box on a form order. We cannot discern whether

deterrence was or was not a factor in the sentencing decision. See State v.

Schrader, No. 16-1816, 2017 WL 2465810, at *2 (Iowa Ct. App. June 7, 2017)

(citing “unchecked boxes in the plea agreement” and stating “[t]his court is not able

to adequately review why that recommendation was not followed or the reasons

for the sentence because we have no presentence investigation report, no

reported sentencing hearing, and only boilerplate sentencing language”).

       In sum, “[l]ooking on the record, we do not know whether the district court

exercised its discretion, simply accepted the parties agreement, or did a little of

both.” Thacker, 862 N.W.2d at 410. We conclude the district court’s statement of

reasons for the sentences imposed reflects an abuse of discretion. We affirm

Harden’s convictions but vacate his sentences and remand for resentencing.

       CONVICTIONS AFFIRMED, SENTENCES VACATED AND REMANDED

FOR RESENTENCING.
