                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1601
                            Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LUCAS KYLE DANIELS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, John C. Nelson,

District Associate Judge.



      A defendant appeals his sentence claiming his right to allocution was

violated. CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
                                         2


MCDONALD, Judge.

       Lucas Daniels appeals following his guilty plea to domestic abuse assault,

second offense, an aggravated misdemeanor, in violation of Iowa Code section

708.2A(3)(b) (2015).     He claims the sentencing court violated his right to

allocution.

       Daniels filed a written guilty plea in which he asked the court to waive the

guilty plea procedures that required the district court to advise him, in person, of

his rights pursuant to Iowa Rule of Criminal Procedure 2.8. In the written guilty

plea, Daniels also waived his right to a fifteen-day delay between his guilty plea

and sentencing, and he asked “that judgment and sentence be pronounced now

and without delay at any place in the Third Judicial District of Iowa.” The same

day the guilty plea was filed, the district court entered a sentencing order

accepting the written guilty plea and committing Daniels to the county jail for 365

days, with 305 days suspended. The district court stated the reasons for the

sentence were “the facts shown to the court, the plea agreement, presentence

investigation or NCIC criminal history report and/or for reasons of deterrence.”

       A defendant has the right to be present at sentencing. See Iowa R. Crim.

P. 2.27(1); State v. Ezell, No. 11-1530, 2012 WL 5954592, at *1 (Iowa Ct. App.

Nov. 29, 2012). Iowa Rule of Criminal Procedure 2.23(3)(d), provides, in part,

that before the court pronounces sentence “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.” A defendant can waive both

the right to be present at sentencing and the right of allocution. See State v.

Shadlow, Nos. 11-2047, 11-2048, 2013 WL 263340, at *1, *3 (Iowa Ct. App. Jan.
                                          3


24, 2013). Our cases state the waiver of the right to be present at sentencing is

necessarily a waiver of the right of allocution. See id. at *3. But the defendant

must actually waive the right to be present at sentencing for this rule to apply.

       We conclude Daniels did not waive his right to be present at sentencing.

The written guilty plea only waived the fifteen-day delay between the plea and

sentencing. To say the language of this waiver is also a waiver of the right to be

present at the time of sentencing goes too far; the time and place requirements

are separate and distinct and have separate purposes. Waiver of one is not

waiver of the other. This is evidenced by custom and practice in the district court

where defendants frequently seek immediate sentencing, waive time between

plea and sentencing, but nonetheless exercise the right of allocution. In each

case in which this court has concluded the defendant waived the right of

allocution, the defendant signed an express waiver of the right to be present at

sentencing and/or the right of allocution. See id. at *1, *3; State v. Estlund, No.

15-1151, 2016 WL 1359056, at *1–2 (Iowa Ct. App. April 6, 2016) (“I waive the

proceeding rights and my right to have the court address me personally . . . I

understand that I have the right to allocution which allows me to address the

Court personally and make a statement in mitigation of my punishment in this

case, as provided by Iowa Rule of Criminal Procedure 2.23(3)(d).”); State v.

Culberson, No. 13-2049, 2015 WL 6509754, at *1 (Iowa Ct. App. Oct. 28, 2015)

(“I expressly waive my right to personally address the court at the time of

sentencing. I further agree that the court may impose sentence without my being

present.”); State v. Verbeek, No. 14-0534, 2015 WL 4936397, at *1 (Iowa Ct.

App. Aug. 19, 2015) (“[The defendant’s] written guilty plea requested immediate
                                         4


sentencing, waived personal presence, waived filing a motion in arrest of

judgment, and acknowledged and waived his right of allocution.”). There is no

express written waiver here.

       To be valid, a defendant’s waiver of the right to be present must be

knowing, intentional, and unambiguous.       See State v. Lumadue, 622 N.W.2d

302, 304 (Iowa 2011).         The waiver of right to delay sentencing does not

constitute a knowing, intentional, and unambiguous waiver of the right to be

present at sentencing and the right of allocution.        See id. (finding that the

language “I waive personal conversation with the Court concerning this charge”

in a document waiving jury trial to be too ambiguous to knowingly and

intentionally waive the right to allocution); State v. Moore, No. 13-0223, 2014 WL

69541, at *1, *3 (Iowa Ct. App. Jan. 9, 2014) (finding defendant’s waiver of “his

right to a delay in sentencing and his right to file a motion in arrest of judgment”

in his written guilty plea was not a waiver of his right of allocution and failure of

the court to afford the defendant this right was reversible error); Ezell, 2012 WL

5954592, at *1 n.2 (“In [the defendant’s] written ‘Waiver of Jury Trial and

Stipulation to Trial on the Minutes of Testimony,’ [the defendant] waived his right

to allocution at sentencing. The document, however, does not specifically waive

[the defendant’s] right to be present at the sentencing hearing. We therefore

reject the State’s claim on appeal that [the defendant] waived his right to be

present at sentencing . . . .”).
                                       5


      Therefore we affirm Daniels’s conviction, but vacate his sentence and

remand for resentencing.

      CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.

      Vaitheswaran, J., concurs; Vogel, P.J., concurs specially.
                                          6


VOGEL, Presiding Judge. (concurring specially)

         I agree with the majority that the guilty plea should have contained

language specifically waiving the right to be present for sentencing, thereby

implicitly waiving the right of allocution. See State v. Shadlow, Nos. 11-2047, 11-

2048, 2013 WL 263340, at *3 (Iowa Ct. App. Jan. 24, 2013) (“Shadlow’s right of

allocution was an inseparable part of his right to be present for his sentencing

hearings, and he voluntarily chose to absent himself from those proceedings by

his written waiver. The court was entitled to proceed with sentencing as if the

defendant was present, and his right of allocution was forfeited.”). However, I

specially concur to note the inconsistency in Daniels’s position from district court

to appellate review.

         Daniels signed a written guilty plea that waived his right to be present and

also specifically asked “that judgment and sentence be pronounced now and

without delay at any place in the Third Judicial District of Iowa.” Daniels’s waiver

of his right to be present in court for the acceptance of his plea, while at the same

time asking for immediate sentencing, seems incongruent with his complaint on

appeal that he was not afforded his right of allocution. Did he anticipate the court

would deny his request that sentence “be pronounced now and without delay”?

Adding to his request for immediate sentencing was the wide latitude he gave

that sentence could be pronounced “at any place in the Third Judicial District of

Iowa.”

         The flaw appears to be more of a deficient plea form, now discovered on

appeal, rather than a true claim of the denial of the right of allocution at the time

of sentencing.     Be that as it may, because the written guilty plea does not
                                        7


explicitly acknowledge either the right to be present at sentencing or the right of

allocution, I agree with the majority the matter should be returned to the district

court for resentencing.
