Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Defendant appeals the district court's revocation of his deferred judgment.
Stephen P. Dowil of Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, John Sarcone, County Attorney, and Joseph Crisp, Assistant County Attorney, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
Richard Osmond McLachlan Jr. appeals the district court's decision revoking his deferred judgments. He asserts the district court erred in finding he violated his probation agreement by possessing marijuana. He also seeks resentencing, contending "at no time did the hearing court grant [him] allocution." We affirm his convictions, vacate the sentences imposed, and remand for the limited purpose of resentencing.
I. Background Facts and Proceedings
McLachlan was placed on probation for domestic abuse assault, a simple misdemeanor in March 2011. At the same time McLachlan's probation officer, Elliot, was supervising him on intensive pretrial release for a pending drug charge. Because McLachlan violated the terms of his probation and release, in May 2011 the court found him in contempt, ordered him to serve nine days in jail while crediting nine days served, and revoked his pretrial release on the pending drug charge.
In July 2011, after McLachlan's entry of an Alford plea to the lesser-included charge of possession of crack cocaine with the intent to deliver, he was granted a deferred judgment and placed on supervised probation. On August 23, 2011, Elliot again discussed the probation rules with McLachlan, and he signed a new probation agreement. McLachlan did not make progress on probation. He missed appointments with his probation officer, tested positive for drug use, failed to maintain employment, had a curfew violation, and did not attend treatment.
At a November 2011 probation violation hearing, the court required McLachlan to reside in the Fort Des Moines residential correctional facility (the Fort). On July 31, 2012, McLachlan successfully completed the Fort program, was released, went directly to Elliot's office, and met with her around 5:00 p.m. Elliot reviewed the terms of probation—including a 10:00 p.m. curfew. Within hours, shortly after midnight on August 1, 2012, McLachlan was arrested on a new drug charge when the Des Moines police responded to reports of shots fired in the area of Good Park. The area is known to the police to have gang and drug activity.
Officer Jacob Hedlund arrived first and spotted a group of four to five people walking through the park. As Officer Hedlund approached the group in his marked patrol car, McLachlan broke away from the group, ran to the south side of the street, ran through a driveway, and ran behind a house. Officer Hedlund testified McLachlan disappeared for about twenty seconds. During that time, the others in McLachlan's group remained on the north side of the street.
Officer Hedlund stopped his car, and McLachlan emerged from behind the house. Based on his experience and the nature of the call, the officer suspected McLachlan may have attempted to "ditch" a weapon. He detained McLachlan and waited for other officers to arrive. When the officers arrived, including Officer Theodore Stroope, Officer Hedlund placed McLachlan in his patrol car and retraced McLachlan's path through the yard. Officer Hedlund found three bags containing a large amount of marijuana in the yard's shrubbery. At no time did Officer Hedlund observe anyone other than McLachlan in that area. The baggies appeared to be new—they were not dirty, wet, covered in cobwebs, or weathered. McLachlan denied ownership of the marijuana and claimed the marijuana belonged to someone else but refused to identify the owner. Officer Hedlund then spoke with the people who had remained on the north side of the street. They denied ownership of the marijuana.
Meanwhile, Officer Stroope searched the north area. In nearby shrubbery, he found a Lexus car key and several small plastic baggies of marijuana. Additionally, hundreds of empty baggies were blowing in the wind in the north area. It was apparent to the experienced officers that someone within the group had discarded the small baggies, the ...