                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1293
                           Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHANTEL C. TEMPLE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge, (plea and sentencing) and Cynthia M. Moisan, District Associate Judge,

(deferred judgment revocation and sentencing).



      Defendant appeals her conviction and sentence imposed after the

revocation of her probation and deferred judgment. CONVICTION AFFIRMED,

SENTENCE VACATED, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

      Shantel Temple appeals her conviction and sentence for criminal mischief

in the third degree, in violation of Iowa Code sections 716.1 and 716.5 (2011),

following the revocation of her probation and deferred judgment for the same.

Temple contends the district court erred in finding a probation violation, erred in

revoking her probation and deferred judgment, and committed sentencing error

following the revocation of her deferred judgment. Interrelated with these claims,

she contends the district court denied her right to due process.

                                         I.

      In May 2012, Temple pleaded guilty to criminal mischief in the third degree

and proceeded to immediate sentencing. The district court granted Temple’s

request for a deferred judgment and placed Temple on probation for two years.

Temple’s probation agreement required her to, among other things, “obey all

Federal, State and Local laws” and to have a valid driver’s license and liability

insurance on any motor vehicle she owned or operated.

      In April 2014, near the end of Temple’s probationary period, the

Department of Correctional Services filed a probation report of violation. The

report alleged Temple had recently been convicted of driving with her license

under suspension and charged with three other traffic offenses. The district court

set the matter for hearing. The hearing was continued on several occasions.

The district court continued the hearing to afford Temple the opportunity to obtain

a temporary driver’s license or present proof she was in a driver’s license

reinstatement program. On June 9, the district court found Temple in contempt

because, it appears, Temple failed to bring proof she obtained her temporary
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license or was in a license reinstatement program. The district court sentenced

Temple to thirty days’ incarceration but afforded Temple the opportunity to purge

the contempt citation by bringing the required documents to a hearing to be held

on July 7. Temple failed to appear at the July 7 hearing, and the district court

issued an arrest warrant.

       More than one year later, on July 21, 2015, the arrest warrant was

executed.   On July 22, Temple appeared before the district court.          Temple

waived her right to counsel and waived reporting of the proceeding.            She

stipulated to violating the terms of probation by having unpaid fines, failing to

appear at the last hearing, and having “tickets from 2014.” The district court

revoked Temple’s probation and deferred judgment, sentenced her to thirty days’

incarceration with credit for two days served, provided Temple may be

considered for electronic monitoring after seven days in jail, and converted the

civil penalty to a $625 fine with credit for any monies previously paid toward her

civil penalty. Temple timely filed her appeal.

                                         II.

       We first address our jurisdiction to consider this appeal. As a general rule,

direct appeal from a probation revocation proceeding is disallowed. See State v.

Rheuport, 225 N.W.2d 122, 123 (Iowa 1975). Postconviction-relief proceedings

are the exclusive remedy.     See Iowa Code 822.2(1)(e) (2015) (providing for

postconviction relief where “[t]he person’s sentence has expired, or probation,

parole, or conditional release has been unlawfully revoked, or the person is

otherwise unlawfully held in custody or other restraint”); Rheuport, 225 N.W.2d at

123 (“We hold chapter 663A [recodified at chapter 822] provides the exclusive
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remedy for challenging revocation of probation.”). An exception to the rule exists

where, as here, the district court revokes a deferred judgment. See State v.

Farmer, 234 N.W.2d 89, 90–91 (Iowa 1975). This is because the revocation

order “inheres in the subsequent judgment [and the] defendant may attack the

revocation order . . . in [her] appeal from final judgment.” Id. at 91. We thus

have jurisdiction over this appeal.

                                          III.

       Temple first raises several challenges to the revocation of her probation.

We review the district court’s revocation decision for the correction of legal error.

See Iowa R. App. P. 6.907.            To the extent Temple raises constitutional

challenges, our review is de novo. See State v. Brooks, 760 N.W.2d 197, 204

(Iowa 2009).

       “Probation revocation involves a two-step inquiry by the court. First, the

court must determine if a probation violation has occurred. Next, the court must

determine what should be done as a result of the violation.” State v. Allen, 402

N.W.2d 438, 443 (Iowa 1987). “Probation revocation is a civil proceeding and

not a stage of criminal prosecution. Because revocation is not a stage of criminal

prosecution, the rules of criminal procedure do not apply and ‘the proceedings

can be informal, even summary.’” State v. Lillibridge, 519 N.W.2d 82, 83 (Iowa

1994) (quoting Calvert v. State, 310 N.W.2d 185, 187 (Iowa 1981)). However,

because probation revocation results in a deprivation of liberty, the court must

afford the defendant due process. See id. Due process requires a probationer

be provided with notice of any claimed violations prior to revocation.          See

Calvert, 310 N.W.2d at 188. Due process requires findings by the court showing
                                          5

the factual basis for the revocation. See id.; State v. Hughes, 200 N.W.2d 559,

562 (Iowa 1972). The court may make the required findings of fact in writing or

orally on the record. See State v. Kirby, 622 N.W.2d 506, 510 (Iowa 2001). The

revocation decision must be supported by a preponderance of evidence. See id.

at 511.

       Temple first contends her due process rights were violated because she

was not provided notice of the violations supporting revocation. Specifically, she

argues the alleged violations set forth in the report of violation were different from

the violations to which she stipulated. There was no due process violation in this

case. The report of violations alleged, among other things, Temple was required

to obey the law. Temple violated the law by driving while her license was under

suspension and committing several traffic offenses.          She stipulated to the

violations by acknowledging the tickets she received in 2014.           Further, due

process rights may be waived. See Patterson v. State, 294 N.W.2d 683, 684

(Iowa 1980).    Temple’s stipulation that she violated her probation in several

respects constitutes a waiver of her right to notice. See Deering v. State, No. 98-

1473, 1999 WL 775998, at *2 (Iowa Ct. App. Sept. 29, 1999).

       Temple also contends the stipulated violations were not actually violations

of her probation agreement. This appears to be a challenge to the sufficiency of

the evidence supporting the district court’s findings.          Temple’s probation

agreement is not part of the record. “It is the defendant’s obligation to provide

this court with a record affirmatively disclosing the error relied upon.” State v.

Mudra, 532 N.W.2d 765, 767 (Iowa 1995), overruled on other grounds by State v.

Thompson, 856 N.W.2d 915, 921 (Iowa 2014). Temple made no effort to create
                                         6

a supplemental record. See Iowa R. App. P. 6.806. We will not speculate on the

issue where the defendant has failed to provide relevant record in support of her

claim. In any event, the claim is without merit. “Even though the probation

agreement is not in the record to establish that compliance with the law was a

condition of probation, we have said ‘it is a fundamental condition of any

probation, whether or not it is expressed in probation instructions, that the

probationer shall not violate the law.’” State v. Kirby, 622 N.W.2d 506, 510–11

(Iowa 2001) (quoting State v. McGinnis, 243 N.W.2d 583, 587 (Iowa 1976)).

Temple stipulated to several violations of the law, including traffic offenses and

the failure to appear for a contempt hearing.

      Temple argues the revocation decision must be reversed because the

district court failed to make a record of its reason or reasons for revoking

probation at the second—or dispositional—stage of the revocation proceeding.

Temple argues her challenge to the revocation court’s failure to provide its

reasoning is analogous to a defendant challenging a void, illegal, or procedurally

defective sentence. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.

1994). She further argues that the failure to make such a record violates federal

due process. See Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (due process

requires a “written statement by the factfinders as to the evidence relied on and

reasons for revoking parole”). We disagree. The United States Supreme Court

has rejected this claim under federal due process standards.        See Black v.

Romano, 471 U.S. 606, 616 (1985) (“The procedures required by the Due

Process Clause of the Fourteenth Amendment were afforded in this case, even
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though the state judge did not explain on the record his consideration and

rejection of alternatives to incarceration.”).

       Temple argues this court should hold that the due process clause of the

Iowa Constitution requires the district court to make a record of its reasons for

revoking probation instead of some other disposition.         We decline to do so.

While the district court has an obligation to make “a record of the probation

violation hearing,” State v. Van Wie, No. 13-0133, 2014 WL 69517, at *2 (Iowa

Ct. App. Jan. 9, 2014), the obligation to make a record relates only to a record of

the findings establishing a violation, see Morrissey, 408 U.S. at 489; State v.

Welsh, 245 N.W.2d 290, 297 (Iowa 1976). There is no requirement that the

district court state additional reasons in support of disposition. The requirement

that the district court make findings establishing a violation is sufficient to protect

the defendant’s limited liberty interests. See State v. Joiner, No. 09-1858, 2010

WL 3326683, at *2 (Iowa Ct. App. Aug. 25, 2010); see also Patterson, 294

N.W.2d at 685.      Like the United States Supreme Court, “[w]e believe that a

general requirement that the factfinder elaborate upon the reasons for a course

not taken would unduly burden the revocation proceeding without significantly

advancing the interests of the probationer.” Black, 471 U.S. at 613.

       In sum, we conclude the revocation proceeding was without error and not

in contravention of Temple’s right to due process under the federal and state

constitutions. She was provided with notice of the alleged violations and given

multiple opportunities to resolve the alleged violations. She failed to do so. After

failing to resolve the alleged violations, she was given an opportunity to be heard.

She stipulated to violating the terms and conditions of her probation. The district
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court made written findings supporting the violations.           Under Black and

Patterson, nothing more was required.

                                         IV.

       Temple also challenges her sentence. Temple contends the district court

failed to provide her with the right of allocution and failed to make a record of the

reason or reasons for imposition of sentence.           After revoking a deferred

judgment, the entry of sentence becomes “the final judgment in the criminal case

and not part of the civil revocation proceeding. Therefore, the district court had

to comply with the rules of criminal procedure.” Lillibridge, 519 N.W.2d at 83.

The State concedes the district court failed to comply with the Rules of Criminal

Procedure by failing to make a record regarding its reason or reasons for

imposition of sentence. We agree. See Thompson, 856 N.W.2d at 921 (“We

also hold if the defendant waives reporting of the sentencing hearing and the

court fails to state its reasons for the sentence in the written sentencing order,

the court has abused its discretion, and we will vacate the sentence and remand

the case for resentencing.”). Because this case must be remanded for a plenary

sentencing hearing, we need not resolve Temple’s claim regarding the denial of

her right of allocution.

                                         V.

       For the above-stated reasons, we affirm the defendant’s conviction, but

we vacate the defendant’s sentence and remand this matter for resentencing.

       CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED.
