                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1132
                               Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN NATHANIEL VAN WIE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.

Harris, District Associate Judge.



      The defendant requests that his sentence be set aside.           SENTENCE

VACATED AND REMANDED FOR RESENTENCING.



      Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

      John Nathaniel Van Wie appeals from the sentence imposed after the

revocation of his probation.

   I. Background Facts and Proceedings

      Van Wie pled guilty on December 21, 2009, to fourth-degree criminal

mischief, criminal trespass, and fifth-degree theft. As a part of a plea agreement,

the State agreed to a deferred judgment.

      Van Wie violated the terms of his probation agreement, and the deferred

judgment was revoked. He was sentenced to consecutive terms of incarceration

not to exceed 365 days for the criminal mischief and trespass convictions, to run

concurrently with a thirty-day term for the theft conviction. No record was made

of the sentencing proceedings, and the trial court failed to make written factual

findings to support the revocation. Van Wie appealed. Because there was no in-

court record or written record of the trial court’s factual findings, the probation

revocation was reversed and the judgment and sentence vacated. See State v.

Van Wie, No. 13-0133, 2014 WL 69517, at *1 (Iowa Ct. App. Jan. 9, 2014). The

matter was remanded for further proceedings. Id. at *3.

      On remand the trial court made an in-court record of the probation-

revocation proceedings. Prior to sentencing, Van Wie’s counsel argued for a

different sentence because of the changes Van Wie had made since his prior

sentencing. The changes included employment, marriage, and fatherhood. The

court sentenced Van Wie to two 365-day terms of incarceration on the criminal

mischief and trespass charges and thirty days on the theft charge, ordering all

three sentences to run concurrently.     The in-court record was followed by a
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written order stating the reasons for revoking probation and a written sentencing

order. Van Wie was not advised of his personal right of allocution.

   II. Preservation of Error

         A sentence may be challenged on direct appeal even though no objection

was lodged at the trial court level. State v. Lathrop, 781 N.W.2d 288, 292 (Iowa

2010).

   III. Standard of Review

         A sentencing procedure is reviewed for an abuse of discretion or defects

in the sentencing procedure. State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995).

   IV. Discussion

         Although a probation-revocation hearing is a civil proceeding, it is followed

by a sentencing, and the rules of criminal procedure are applicable to the

sentencing itself. See State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999).

Prior to sentencing, both the defendant and defendant’s counsel are allowed to

address the court in mitigation of the sentence to be imposed. Iowa R. Crim. P.

2.23(3)(a). As in Duckworth, there is no showing that the court made any effort

to allow Van Wie to personally express any information that might mitigate his

sentence or to advise him of his right to do so. See Duckworth, 597 N.W.2d at

801 (“The sentencing record clearly shows the court made no effort to provide

Duckworth with an opportunity to volunteer any information in mitigation of his

sentence.”).

         The State contends the failure to advise Van Wie of his right of allocution

was harmless error. The State’s contention is primarily based on Van Wie’s

counsel’s statements in favor of a lesser sentence than had previously been
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entered and the fact that a lesser sentence was in fact granted. Because Van

Wie was not advised of his right of allocution and he did not speak, we do not

know what other mitigating factors Van Wie might have raised. It can always be

asserted that a failure to advise a defendant of his right of allocution was

harmless when we have no record of what the defendant might have said.

Accordingly, the sentence imposed is vacated. Van Wie is to be resentenced

after having been advised of his right of allocution and a record is made of his

response.

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.
