                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2049
                             Filed October 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEMARCUS LETRELLE CULBERSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.



      A defendant appeals the sentence for his conviction for driving while

barred as a habitual offender. AFFIRMED.



      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Tyler J. Buller,

Assistant Attorneys General, Michael J. Walton, County Attorney, and Robert

Bradfield, Assistant County Attorney, for appellee.



      Considered by Potterfield, P.J., McDonald, J., and Sackett, S.J.*

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

      Defendant DeMarcus Culberson appeals the sentence for his conviction

for driving while barred as a habitual offender. We determine that Culberson

knowingly and intentionally waived his right to make a statement in mitigation of

punishment. We deny his request to have his sentence reversed and the case

remanded for resentencing.

      The State filed a trial information alleging Culberson had operated a motor

vehicle while barred as a habitual offender, in violation of Iowa Code section

321.561 (2013), an aggravated misdemeanor. Culberson entered into a plea

agreement in which he agreed to plead guilty and the State agreed to

recommend a sentence of 365 days in jail, with all but ninety day suspended, and

a fine of $1200.

      Culberson signed a written guilty plea on June 5, 2013, stating he “did

operate a motor vehicle while my driving privileges [were] barred as a habitual

offender.” Culberson also signed a “Consent to Waive Presence,” which stated,

“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.”

      The judgment and sentence, filed on December 5, 2013, provides, “The

defendant appears personally with/by Attorney _____.”       The court accepted

Culberson’s guilty plea. He was sentenced to 365 days in the county jail, with

credit for time served and all but ninety days suspended, and ordered to pay a
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fine of $1200. The sentencing hearing was not reported, and therefore, there is

no transcript of the hearing.

         On appeal, Culberson seeks to be resentenced, asserting he was denied

his right to allocution. He claims there is no indication in the record that he was

allowed to make a statement in mitigation of punishment. He contends he should

have been given the opportunity to personally address the court. Our review is

for an abuse of discretion.     See State v. Craig, 562 N.W.2d 633, 634 (Iowa

1997).

         Iowa Rule of Criminal Procedure 2.23(3)(d) provides that prior to the

rendition of 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.” “[O]ur Supreme Court requires a record establishing

that the court has invited or afforded an opportunity for the defendant to speak

regarding punishment.” State v. Cooley, 691 N.W.2d 737, 740 (Iowa Ct. App.

2004).    A defendant may relinquish the right to allocution by a knowing and

intentional waiver. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).

         We determine Culberson knowingly and intentionally waived his right to

make a statement in mitigation of punishment by signing the “Consent to Waive

Presence,” which stated, “I expressly waive my right to personally address the

court at the time of sentencing.” By referring to Culberson’s right to address the

court at the time of sentencing, we find the statement unambiguously refers to

Culberson’s right of allocution. Cf. id. (finding a waiver of “personal conversation

with the court” in a waiver of jury trial was too ambiguous to waive the right to
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allocution at sentencing). Furthermore, Culberson waived his right to be present

at sentencing, which would preclude his ability to address the court at

sentencing. See Iowa R. Crim. P. 2.27(1) (providing that in misdemeanor cases

a defendant may appear at sentencing by counsel); Patten v. State, 553 N.W.2d

336, 337 (Iowa Ct. App. 1996) (same).

      We deny his request to have his sentence reversed and the case

remanded for resentencing. We affirm his conviction and sentence.

      AFFIRMED.
