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State of Iowa v. Kenneth James Shadlow

January 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
KENNETH JAMES SHADLOW, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Black Hawk County, Nathan A. Callahan, District Associate Judge.

The opinion of the court was delivered by: Danilson, J.

Defendant appeals his sentences for two charges of failing to comply with the sex offender registry requirements. AFFIRMED.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Bower, J., takes no part.

The defendant appeals from convictions in two cases contending the district court erred in imposing sentence on his written guilty pleas without affording him his right of allocution. Because we conclude the defendant voluntarily waived his right to be present for sentencing and the right of allocution is inseparable from the sentencing procedures, we affirm.

I. Background Facts & Proceedings

Kenneth Shadlow was previously convicted of sexual exploitation of a minor, and as a result, was required to register as a sex offender under Iowa Code chapter 692A (2011). On April 6, 2011, Shadlow was charged in AGCR175322 with failing to comply with the sex offender registry requirements, in violation of section 692A.111(1), an aggravated misdemeanor, for the time period of March 15, 2011, through March 25, 2011. On July 22, 2011, he was charged in AGCR177116 with failing to comply with the sex offender registry requirements for the time period of May 30, 2011, through July 12, 2011.

On November 4, 2011, as part of a plea agreement, Shadlow filed a written Waiver of Rights and Guilty Plea to the two charges.*fn1 Pursuant to the agreement, the State agreed to dismiss a third charge against Shadlow for failing to comply with the sex offender registry requirements. In addition, the State agreed to recommend in each case a two-year sentence, which would be suspended, and defendant would be placed on supervised probation for one to two years. The sentences would be made concurrent to each other.

The written guilty pleas were not conditioned on the court's concurrence. The written guilty forms both stated that the defendant had the right to a fifteen-day delay before being sentenced. Shadlow checked the box to show he waived that right on both forms. The written guilty plea forms went on to state, "If waived, I request the Court impose judgment and sentence me according to the terms of the plea agreement."

The written guilty plea forms also stated: "I waive my right to be present in court for plea proceedings under R. Cr. P. 22 and my right to be present for sentencing." The forms also identify Shadow's attorney and were signed by Shadlow. The district court accepted Shadlow's written guilty pleas and sentenced him in accordance with the parties' agreement.

II. Standard of Review

Shadlow now appeals his sentences, claiming he was denied his right to allocution. We review sentencing procedures for an abuse of discretion. State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). "Such abuse will only be found if the district court's discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id.

III. Merits

Under Iowa Rule of Criminal Procedure 2.23(3)(d), a defendant has the right to address the court personally "to make a statement in mitigation of punishment." The court does not need to use any particular language; "as long as the court provides defendant with an opportunity to speak regarding his punishment, the court is in compliance with the law." State v. Jorden, 461 N.W.2d 356, 359 (Iowa Ct. App. 1990). The rule is mandatory, but substantial compliance is sufficient. State v. Millsap, 547 N.W.2d 8, 10 (Iowa Ct. App. 1996). "The important thing is whether defendant had his chance to point out any reason for withholding judgment." State v. Patterson, 161 N.W.2d 736, 738 (Iowa 1968).

The State claims that by waiving his right to be present for sentencing the defendant waived his right of allocution. A defendant may decide to waive the right of allocution. State v. Jones, 817 N.W.2d 11, 19 (Iowa 2012). This waiver should be knowing and intentional. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001) (citing State v. Seager, 571 N.W.2d 204, 209 ...


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