                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1031
                              Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GEORGE JAMES JACKSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, James C. Ellefson,

Judge.



      George Jackson appeals the sentencing order correcting his original illegal

sentence. AFFIRMED.



      Jesse A. Macro Jr. and Cole J. Mayer of Macro & Kozlowski, LLP, West

Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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DOYLE, Judge.

         George Jackson contends the sentencing court erred in correcting his

original illegal sentence without holding a hearing where he could be present.

Finding no violation of his right to be present, we affirm.

         After negotiations with the State, Jackson pled guilty to the crime of

domestic abuse assault in violation of Iowa Code section 708.2A(2)(b) (2017), a

serious misdemeanor.1 One convicted of domestic abuse assault must participate

in a batterers’ treatment program. Iowa Code section 708.2A(10). The “Plea

Bargain” provision in Jackson’s written guilty plea includes (in bold): “I will also be

required to complete the Iowa Domestic Abuse Education Program.”                  The

prosecutor summarized the terms of joint plea agreement for the court at the plea

hearing, noting one of the terms was that Jackson “complete the . . . Iowa

Domestic Abuse Program.” During its comprehensive colloquy with Jackson, the

plea court told Jackson he would have to participate in the domestic abuse

treatment program.      Jackson agreed that was his understanding of the plea

agreement. At the end of the proceedings, the court accepted the plea, and

sentencing was scheduled for a later date.

         Inexplicably, the State’s written memorandum of plea agreement failed to

include the requirement that Jackson participate in the batterers’ treatment

program.     Both parties stood by the memorandum of plea agreement at the

sentencing hearing.      The court adjudged Jackson guilty.2          During its oral

pronouncement of Jackson’s sentence, the court did not order Jackson to


1   Jackson also pled guilty to second-degree burglary and stalking.
2   Jackson was also adjudged guilty of second-degree burglary and stalking.
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participate in a batterers’ treatment program as statutorily required. Nor was the

requirement in the court’s written sentencing order.          Jackson appealed his

convictions.

       A few months after Jackson appealed, the State applied for a nunc pro tunc

order asking the court to require Jackson to complete a batterers’ treatment

program under Iowa Code section 708.2B. The same day the application was

filed, the court granted the State’s application and entered an order nunc pro tunc,

ordering “that the judgment entry filed October 23, 2017, shall be amended to

reflect the requirement that [Jackson] complete a batterers’ education program as

required by Iowa Code Section 708.2B.” The nunc pro tunc order was one issue

considered by this court in Jackson’s appeal. State v. Jackson, No. 17-1816, 2018

WL 6706216, at *1-2 (Iowa Ct. App. Dec. 19, 2018).

       We concluded Jackson’s original sentence was illegal because it failed to

order the batterers’ treatment program. Id. at *1. Since the original sentence was

an illegal one, we held that the nunc pro tunc order did not affect the illegal

sentence. Id. at *2. We vacated “that portion of the sentence imposed by the nunc

pro tunc order.” Id.

       Under the unique circumstances of this case—where Jackson’s
       written guilty plea recited “I will also be required to complete the Iowa
       Domestic Abuse Education Program,” at the plea hearing the
       prosecutor recited the same requirement when informing the court of
       the plea agreement, the plea-taking court informed Jackson of the
       batterers’ treatment requirement, and the court had no discretion
       whether to order the statutorily mandated batterers’ treatment
       program but failed to do so at the time of sentencing—we will not
       require the court to convene a new sentencing hearing. See State
       v. Tenny, 493 N.W.2d 824, 826 (Iowa 1992) (requiring sentencing
       courts “to order all defendants convicted of domestic abuse assault
       to participate in a batterers’ treatment program”). Instead, we
       remand for entry of a corrected sentencing order, which adds the
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        requirement that Jackson participate in a batterers’ treatment
        program as part of his sentence for his conviction of domestic-abuse
        assault, and otherwise includes all provisions in the original
        sentencing order.

Id. at *2.

        Jackson applied for further review challenging our direction that the

sentence be modified without the need to reconvene sentencing. He contended

“that if there is to be an amendment to the sentence that he has a right to have the

modification made in open court while he is present.” He argued,

                A defendant has a right to be personally present at every
        stage of the proceedings in a criminal case. Jackson has not waived
        his right in this matter. Jackson contends that if the plea is not set
        aside, at a minimum a new sentencing hearing should be conducted
        with appropriate notice, opportunity to be present and right to be
        heard.

The supreme court denied Jackson’s application after en banc consideration.

Procedendo issued.

        Following the directive of this court, the trial court entered a corrected

sentencing order stating:

               The need for this corrected sentencing order was determined
        by the Iowa Court of Appeals in a decision filed December 19, 2018.
        Procedendo was filed with the clerk of this court on February 26,
        2019. This corrected sentencing order is intended to comply with the
        decision of the court of appeals and speaks as of the date of the
        original filing, October 23, 2017.

The corrected sentencing order provides, “As required to correct the original order,

the defendant shall complete a batterers’ treatment program as required by Iowa

Code section 708.2B.” Jackson cries foul and appeals.

        Jackson argues he had a right under Iowa Rule of Criminal Procedure

2.27(1) to be present at the correction of his sentence. Rule 2.27(1) provides:
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       Felony or misdemeanor. In felony cases the defendant shall be
       present personally or by interactive audiovisual closed circuit system
       at the initial appearance, arraignment and plea, unless a written
       arraignment form as provided in rule 2.8(1) is filed, and pretrial
       proceedings, and shall be personally present at every stage of the
       trial including the impaneling of the jury and the return of the verdict,
       and at the imposition of sentence, except as otherwise provided by
       this rule. In other cases the defendant may appear by counsel.

Exceptions to the rule do not apply here.

       A defendant’s presence is not required under rule 2.27 for a “correction of

sentence” when the disposition will not be significantly aided by the defendant’s

presence. See State v. Austin, 585 N.W.2d 241, 245 (Iowa 1998). On the other

hand, a defendant must be present at proceedings “correcting” a void sentence

when imposing a new and different sentence. See State v. Johnson, 222 N.W.2d

453, 458 (Iowa 1974). We have recognized that under the rules of criminal

procedure, “a distinction exists between proceedings in the district court that

modify an existing sentence and those that may impose a new sentence after the

original has been vacated or otherwise set aside.” State v. Cooley, 691 N.W.2d

737, 741 (Iowa Ct. App. 2004). We concluded “[a] defendant’s presence is not

required in the former instance, but is in the latter.” Id. Cooley holds “that under

the Iowa Rules of Criminal Procedure, a defendant’s presence is not required

where a district court is correcting an existing sentence, so long as the disposition

would not be aided by the defendant’s presence and the modification does not

make the sentence more onerous.” Id. “However, a defendant has a right to be

present and address the court where the court is imposing a new sentence after

nullification of the original sentence.” Id.
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      Here, the original sentence was not nullified, set aside, or vacated. It was

only that portion of the sentence imposed by the nunc pro tunc order that this court

vacated. Jackson, 2018 WL 6706216, at *2. A whole new sentence was not

imposed.     The sentence was corrected, not modified.       The requirement that

Jackson complete a batterers’ treatment program is mandated by statute. So

Jackson’s presence would not have aided or added anything to the disposition in

correcting his sentence. It could be argued that adding the batterers’ treatment

program makes Jackson’s sentence more onerous. Nevertheless, the Cooley

holding was not violated. Jackson included the requirement he attend a batterers’

treatment program in his written guilty plea presented to the court. He agreed to

this term when asking the court to accept his plea. He again acknowledged the

requirement in open court at his plea hearing. No doubt he fully expected his

sentence to include the batterers’ treatment program provision. So the correction

of the sentence adds nothing to and is not “more onerous” than the sentence

Jackson agreed to in his plea. In these unique circumstances, we conclude

Jackson’s presence was not required at the correction of his sentence.

      In any event, the presumption of prejudice presumed from a defendant’s

absence at a critical stage of the proceedings is subject to a harmless error

analysis. See State v. Atwood, 602 N.W.2d 775, 781 (Iowa 1999). A defendant’s

absence thus will not always require reversal. See State v. Wise, 472 N.W.2d 278,

279 (Iowa 1991). Jackson’s acknowledgement and acceptance of the batterers’

treatment requirement at his plea hearing belies and rebuts any prejudice he may

now claim.
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      We conclude Jackson did not have to be present when the district court

corrected Jackson’s sentence.

      AFFIRMED.
