from the Iowa District Courts for Butler and Franklin
Counties, Peter B. Newell, District Associate Judge.
appeals his convictions for operating while intoxicated,
third offense, and three counts of driving while barred.
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
Larue appeals his convictions for operating while
intoxicated, third offense, and three counts of driving while
barred. We find Larue was not denied his right of allocution
during the sentencing hearing and preserve Larue's claim
he received ineffective assistance of counsel for possible
postconviction proceedings as the present record is not
adequate to address the issue. We affirm Larue's
Background Facts & Proceedings
September 15, 2015, Larue was charged with driving while
barred, in violation of Iowa Code section 321.561 (2015), an
aggravated misdemeanor, in Butler County. On January 13,
2016, he was charged with driving while barred in Franklin
County. On February 10, 2016, Larue was charged with
operating while intoxicated (OWI), third offense, in
violation of section 321J.2, a class "D" felony,
and driving while barred in Butler County. Larue entered into
an agreement in which he agreed to plead guilty to the
charges against him and the State agreed to recommend the
sentences should be served concurrently.
guilty plea proceeding was held on March 23, 2016. After a
colloquy, the district court accepted Larue's guilty
pleas. Larue requested immediate sentencing. The State made
sentencing recommendations in accordance with the plea
agreement and defense counsel also asked the court to follow
the terms of the plea agreement. The court then asked,
"Mr. Larue, is there anything you would like to
say?" and he replied, "No, Your Honor." The
court sentenced Larue to a term of imprisonment not to exceed
five years on the OWI charge and two years on each of the
charges of driving while barred, all to be served
concurrently. Larue now appeals his convictions.
Right of Allocution
claims the district court denied him his right to allocution.
He states the court's question-"Mr. Larue, is there
anything you would like to say?"-was not sufficient to
inform him he had the right to say anything on his own behalf
or had the absolute right of allocution. Larue asks to have
the case remanded for resentencing.
a sentence will not be upset on appellate review unless a
defendant can demonstrate an abuse of discretion or a defect
in the sentencing procedure." State v.
Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997) (citation
omitted). "A trial court's sentencing decision is
cloaked with a strong presumption in its favor, and an abuse
of discretion will not be found unless a defendant shows such
discretion was exercised on grounds or for reasons clearly
untenable or to an extent clearly unreasonable."
Rule of Criminal Procedure 2.23(3)(d) provides prior to the
rendition of sentence, "counsel for the defendant, and
the defendant personally, shall be allowed to address the
court where either wishes to make a statement in mitigation
of punishment." "Sentencing courts are not required
to use any particular language to satisfy rule
2.23(3)(d)." State v. Nosa, 738 N.W.2d 658, 660
(Iowa 2007). Substantial compliance with the rule is
sufficient. Id. "Therefore, as long as the
district court provides the defendant with an opportunity to
speak regarding his ...