Opinion
No. 2-799 / 01-1638
Filed November 25, 2002
Appeal from the Iowa District Court for Polk County, GEORGE BERGESON, Judge.
Defendant appeals from the judgment and sentence following his conviction for domestic abuse assault, enhanced, in violation of Iowa Code section 708.2A(3)(b) (2001). CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Defendant-appellant David Adcock appeals from the judgment and sentence following his conviction for domestic abuse assault, enhanced, in violation of Iowa Code section 708.2A(3)(b) (2001). Defendant claims the trial court abused its discretion by 1) failing to afford him his right of allocution, and 2) failing to give him specific reasons for imposing consecutive sentences. We affirm defendant's conviction, vacate his sentence and remand the case to the district court for resentencing.
Defendant stipulated to a trial on the minutes of testimony. According to the police report accompanying the minutes, on July 15, 2001 defendant found his former girlfriend, Sharon Kilgore, at her friend's home. He told Sharon to get into his car. The defendant then drove Sharon away, defeating her efforts to escape by locking the door. Defendant also grabbed Sharon by the neck and hit her head against the dashboard and side window. He repeatedly threatened to kill her. Defendant took Sharon to his home where she reported he hit her face, choked her, strangled her and smothered her with a pillow. The defendant then raped Sharon, hitting her in the face and choking her to subdue her. Sharon escaped the next morning and was walking to her mother's house when defendant tried again to get her into his car. She was able to run to her mother's house and escape him.
Sentencing for the stipulated trial on the minutes occurred during a hearing on October 1 and 2, after the district court determined defendant was guilty beyond a reasonable doubt and deemed the offense enhanced due to a prior domestic abuse conviction in Hardin County in 2000. At that hearing the district court also sentenced defendant for a March 16, 2001 domestic abuse conviction, following a jury verdict on July 12, 2001, which was also enhanced due to the Hardin County domestic abuse conviction. We note that we have reversed defendant's conviction on the March 16, 2001 domestic abuse conviction and remanded for a new trial. See State v. Adcock, No. 01-1637 (Iowa Ct.App. Nov. 15, 2002).
The sentencing transcript indicates this conviction, FE9981-899, occurred on December 19, 2000. The sentencing order indicates it occurred on September 19, 2000. On September 19, 2001 , it appears that defendant was sentenced for the three violations of the no-contact order.
We review sentencing decisions by the district court for abuse of discretion. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). We will find an abuse of discretion only if the district court's discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.
Defendant's first claim on appeal is that he was denied his right of allocution. Defendant bases his claim upon the district court's failure to invite him to address the court prior to imposition of the sentence for the July 15 offense at issue, even after it did invite him to address the court prior to imposing his sentence on the jury trial conviction for the March 16 offense. The defendant's response to this invitation was that he did not wish to speak.
Substantial compliance with Iowa Rule of Criminal Procedure 2.23(3)(d), which affords defendant his right of allocution, is sufficient. State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999). Defendant was sentenced for the March 16 incident, resulting in his conviction by a jury, as well as for the July 15 offense at issue. Both sentences drew upon a prior Hardin County domestic abuse offense occurring in 2000 for enhancement purposes. Both cases were discussed during the hearing prior to sentencing. The prosecutor made a sentencing recommendation for both cases prior to the court's addressing defendant. Victim impact statements from Sharon's family, made before either sentence, referred to the general effect of defendant's abusive acts toward Sharon. As both crimes were discussed together, it would have been natural for defendant, if he wished to volunteer information helpful to his cause, to speak about either case when offered his invitation to address the court. He chose not to address the court. During the hearing both of defendant's convictions for which he was to be sentenced were discussed. We find no error in the district court's not offering defendant a second opportunity to speak on his own behalf.
Defendant's second claim on appeal is that the district court erred by failing to give reasoning for imposing consecutive sentences. Again we note that we have reversed defendant's jury conviction on the March 16 incident and remanded for a new trial in that case.
The issue of consecutive sentences remains before us, however, because although the reversed jury conviction was the basis for one of defendant's consecutive sentences, the sentence for that conviction was to be served concurrently with defendant's prior sentence on September 19, 2001, for three violations of a no-contact order. For each of the no-contact order violations, defendant received six-month sentences, to be served consecutively with each other and concurrently with the (now overturned) sentence for the March 16 incident.
Defendant argues on appeal the district court erred in imposing consecutive sentences because it did not specifically explain the reason for making them consecutive. Although the sentence for the March 16 offense has been vacated, the district court provided that the sentence for the July 15 offense was to run consecutive to the sentence for the March 16 offense, which itself was to run concurrent with the sentence for the no-contact order offenses. The question remains, then, whether the sentence for the July 15 conviction at issue can still be served consecutively with defendant's sentences on the no-contact order violations.
Iowa Rule of Criminal Procedure 2.23(3)(d) requires a trial court to state on the record its reasons for selecting a particular sentence. See Oliver, 588 N.W.2d at 414. Although the reasons need not be detailed, at least a cursory explanation must be provided to allow appellate review of the trial court's discretionary action. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). A trial court must also give reasons for its decision to impose consecutive sentences. Id.
Following the prosecutor's recommendation for consecutive sentences and the defense attorney's recommendation for concurrent sentences, the trial court made the following statements in sentencing defendant for the July 15 offense:
Therefore, I'm finding . . . that you be adjudged guilty . . . and that you be incarcerated for a period not to exceed two years. Probation's denied. That's in order to protect the public in this matter and because of the seriousness of the crime. And that's to be served consecutive with [the sentence for the March 16 offense].
The court did not specifically link any of its reasoning to its imposition of the consecutive sentences. The court found, in the interest of the public generally, and due to the seriousness of defendant's crime, that probation was denied. But the court offered no reasoning for the consecutive sentence, nor did it indicate that the prior reasoning applied to the consecutive sentence. Further, the court did not offer any subsequent reasoning following its imposition of the consecutive sentence indicating why the consecutive sentence was appropriate. We conclude the court failed to provide reasoning for the consecutive sentence and that this was error. We therefore vacate the sentence for the July 15 offense and remand for resentencing. See id.
We have considered defendant's other claims and, due to this holding, we do not address them.