                     IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0561
                               Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAWAYNE MCGOWAN,
     Defendant-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Scott County, Douglas C.

McDonald, Judge.



        A criminal defendant appeals his sentence after pleading guilty to driving

while    barred.       SENTENCE        VACATED        AND    REMANDED        FOR

RESENTENCING.



        Leah Patton of Puryear Law P.C., Davenport, for appellant.

        Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Linda J.

Hines, Assistant Attorneys General, for appellee.



        Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

      Dawayne McGowan appeals his sentence after pleading guilty to driving

while barred. He argues the district court failed to comply with Iowa Rule of

Criminal Procedure 2.23(3)(d) because it listed McGowan’s written plea

agreement—which is not contained in the record—as a factor considered in

determining his sentence. We find the district court did not adequately comply

with the rule and, therefore, vacate McGowan’s sentence and remand for

resentencing.

I. Background Facts and Proceedings

      On March 24, 2014, the State filed a trial information charging McGowan

with one count of driving while barred as a habitual offender, in violation of Iowa

Code sections 321.555(1) and 321.561 (2013).            On February 20, 2015,

McGowan filed a written guilty plea to the same. As a part of the written plea,

McGowan initialed a paragraph which read: “A plea agreement in my case exists

as evidenced by a memorandum of plea agreement which I have signed.               I

understand that any plea agreement is not binding on the court.” He also waived

his rights to an in-court plea colloquy and to personally address the court at the

time of sentencing.

      The district court accepted McGowan’s guilty plea and on March 20, 2015,

sentenced him to a 365-day term of imprisonment in county jail. All but ninety

days of the sentence was suspended, and McGowan was given credit for time

served.   He was also placed on unsupervised probation for one year and

assessed a $1500 fine, plus applicable costs, surcharges, and fees.      In lieu of

payment, McGowan was ordered to complete 296 hours of unpaid community
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service. The district court explained its basis for the sentence imposed in its

written judgment and sentence:

       The following sentence is based on all of the available sentencing
       considerations set out in Iowa Code section 907.5. The court finds
       the following factors the most significant to determine this particular
       sentence: defendant’s age, family circumstances, education, prior
       criminal record, [the] facts and circumstances of this offense, and
       the belief that the sentence will provide benefit to the defendant and
       the community. The plea agreement was also considered.

The plea agreement referenced both in McGowan’s written guilty plea and in the

district court’s written judgment and sentence was never made a part of the

record.

       McGowan now appeals.

II. Standard of Review

       When reviewing a district court’s sentencing decisions, we will not reverse

absent either an abuse of discretion or a defect in the sentencing procedure such

as the consideration of inappropriate matters. See State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002).

III. Analysis

       Iowa Rule of Criminal Procedure 2.23(3)(d) provides, in part, that when a

district court sentences a defendant, “[t]he court shall state on the record its

reason for selecting the particular sentence.” The district court may satisfy this

requirement either by stating its reasons orally on the record or by including them

in its written sentencing order. State v. Thompson, 856 N.W.2d 915, 919 (Iowa

2014). The most important purpose of the requirement is to afford appellate

courts the opportunity to review the sentencing court’s discretion. Id.
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       McGowan argues the district court violated rule 2.23(3)(d) when it based

his sentence in part upon a written plea agreement not contained in the record.1

In other words, he argues the district court did not comply with the mandate that

it state on the record—here, in its written sentencing order—its reason for

selecting the particular sentence when it listed as one factor under consideration

a written document not made a part of the record and, therefore, unavailable for

appellate review. We agree.

       Our supreme court recently held, in a similar case, that a district court did

not adequately state the reasons for its sentence on the record as required by

rule 2.23(3)(d) when it made reference to a plea agreement whose terms were

not contained in the record. State v. Thacker, 862 N.W.2d 402, 410 (Iowa 2015).

In Thacker, as here, a criminal defendant was sentenced after submitting a guilty

plea, and the plea agreement was never made a part of the record. Id. at 404.

As a result, our supreme court explained, a reviewing court looking at the record

was left to guess “whether the district court exercised its discretion, simply

accepted the parties’ agreement, or did a little of both.” Id. at 410.




1
  As recently as two years ago, a criminal defendant wishing to appeal a sentence on the
grounds the district court violated rule 2.23(3)(d) was required to provide a record of his
sentencing hearing on appeal or else waive error for the claim. See, e.g., State v.
Brooks, No. 13-1675, 2014 WL 6721201, at *1 (Iowa Ct. App. Nov. 26, 2014) (citing
State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995)). However, after State v. Thompson
was decided in December 2014, a defendant no longer needs to do so. 856 N.W.2d at
921 (overruling Mudra and other cases “holding the defendant waives his or her right to
appeal a particular sentence when the defendant waives reporting of the sentencing and
the court fails to put reasons for the sentence in the written sentencing order”). Now, in
the absence of any record of a sentencing hearing we look to the sufficiency of the
district court’s written sentencing order; if the district court failed to adequately state its
reasons for the sentence in the written sentencing order, it has abused its discretion, and
we must vacate the sentence and remand the case for resentencing. Id.
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       This is not to say that McGowan’s case is indistinguishable from the one

considered in Thacker. In Thacker, the district court used a sentencing form

which included only the boilerplate language that its chosen sentence was

“based on all of the available sentencing considerations set out in Iowa Code

section 907.5,” along with a checked box indicating that, of the factors

considered, the plea agreement was “the most significant in determining [the]

particular sentence.”    Id. at 404.    Here, the district court listed a number of

specific factors it considered to be most significant to its sentencing decision, and

the plea agreement was not listed among those most significant factors but

instead as something that “was also considered.”

       But even with these distinctions, we still find Thacker to be controlling

because the sentencing defect described in Thacker exists here as well, even if

to a differing degree.       We, the reviewing court, when looking at the record,

cannot determine precisely what was considered by the district court or even if

the district court followed the plea agreement in whole or in part or otherwise

exercised its discretion.      We are therefore compelled to vacate McGowan’s

sentence and remand for resentencing, with the same instructions given to the

district court in Thacker:

       On remand, if the district court determines it merely gave effect to
       the parties’ agreement and exercised no discretion in sentencing
       other than to accept the plea agreement as advanced by the
       parties, it should make the particulars of the plea agreement with
       respect to the sentence a part of the record. . . . If, on the other
       hand, the parties did not come to an agreement with respect to the
       particulars of the sentence or the district court departed from any
       agreement the parties may have had, then the district court
       exercised discretion and, as a result, must make a statement on the
       record as to why it exercised its discretion in the way it did. On
       remand, there is no requirement the district court arrive at a
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       different sentence, but only that it satisfy the requirements of Iowa
       Rule of Criminal Procedure 2.23(3)(d).

Id. at 410–11 (internal citation omitted).

       SENTENCE VACATED AND REMANDED FOR RESENTENCING.
