from the Iowa District Court for Woodbury County, Timothy T.
Jarman, District Associate Judge.
Johnson appeals his sentences, contending his right to
personal presence and allocution at sentencing were violated.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey &
Daane, Sioux City, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
Johnson appeals his sentences following his guilty pleas to
serious assault and third-degree theft. Claiming that his
rights of personal presence and allocution at the sentencing
hearing were violated, Johnson requests his sentences be
vacated and his case remanded for resentencing. Because
has completely discharged his sentences, we dismiss his
appeal as moot. Johnson was charged by trial information with
one count of serious assault, in violation of Iowa Code
§§ 708.1 and 708.2(2) (2016), a serious
misdemeanor, and one count of theft in the third degree in
violation of Iowa Code § 714.1(4) and 714.2(3), an
aggravated misdemeanor. Johnson pled guilty to each count in
separate undated written pleas of guilty. Each written plea
indicated the prosecutor would recommend, among other things,
that Johnson be committed to jail for a period of thirty
days. In each plea agreement, Johnson acknowledged:
This is a bargained plea and is based on the recommendations
to be made by the prosecuting attorney, but I know that those
recommendations are not binding on the Court and no one has
guaranteed to me any specific sentence. I understand that the
Judge is not bound by any plea bargain that I have entered
into with the prosecuting attorney. I also know that the
Judge may not follow the recommendation in the Plea Agreement
and that my sentence may be either less or more severe than
that called for in the Plea Agreement.
waived his right to a fifteen-day delay between the time of
entry of his plea and the date of his sentencing,
see Iowa R. Crim. P. 2.23(1), and he asked
"that judgment and sentence be pronounced now and
without delay." The written pleas were filed on May 13,
2016. Three days later, the district court entered an order
of disposition accepting Johnson's pleas and sentencing
him to thirty days in jail on each count to be to be served
concurrently. In this paper-plea proceeding, Johnson was not
present when the court accepted his pleas and imposed the
sentences. He filed his notice of appeal on June 8,
2016. On February 2, 2017, the State moved to dismiss the
appeal as moot. Johnson resisted. The supreme court denied
the motion on March 30, 2017, and allowed the parties to
address the mootness matter in their appellate briefs. The
appeal was transferred to this court on May 12, 2017.
appeal, Johnson argues his sentences should be vacated and
the case remanded for resentencing because the district court
failed to afford him his rights of personal presence and
allocution at sentencing. A defendant has the right to be
present at sentencing. See Iowa R. Crim. P. 2.27(1);
State v. Ezell, No. 11-1530, 2012 WL 5954592, at *1
(Iowa Ct. App. Nov. 29, 2012). Iowa Rule of Criminal
Procedure 2.23(3)(d), provides, in part, that before the
court pronounces 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." A defendant can waive both the right to
be present at sentencing and the right of allocution. See
State v. Shadlow, Nos. 11-2047, 11-2048, 2013 WL 263340,
at *1, *3 (Iowa Ct. App. Jan. 24, 2013). Our cases state the
waiver of the right to be present at sentencing is
necessarily a waiver of the right of allocution. See
id. at *3.
each case in which this court has concluded the defendant
waived the right of allocution, the defendant signed an
express waiver of the right to be present at sentencing
and/or the right of allocution. See id. at *1, *3;
State v. Estlund, No. 15-1151, 2016 WL 1359056, at
*1-2 (Iowa Ct. App. Apr. 6, 2016) ("I waive the
proceeding rights and my right to have the court address me
personally . . . I understand that I have the right to
allocution which allows me to address the Court personally
and make a statement in mitigation of my punishment in this
case, as provided by Iowa Rule of Criminal Procedure
2.23(3)(d)."); State v. Culberson, No. 13-2049,
2015 WL 6509754, at *1 (Iowa Ct. App. Oct. 28, 2015) ("I
expressly waive my right to personally address the court at
the time of sentencing. I further agree that the court may
impose sentence without my being present."); State
v. Verbeek, No. 14-0534, 2015 WL 4936397, at *1 (Iowa
Ct. App. Aug. 19, 2015) ("[The defendant's] written
guilty plea requested immediate sentencing, waived personal
presence, waived filing a motion in arrest of judgment, and
acknowledged and waived his right of allocution."). The
written guilty plea forms signed by Johnson are devoid of any
such waivers. Consequently, we conclude Johnson did not
waive his right to be present at sentencing.
State does not respond to the merits of the waiver issue but
instead contends that Johnson's claim is moot because he
has discharged his sentences. Johnson does not dispute that
he has discharged his jail sentences. "A case is moot
when judgment, if rendered, will have no practical legal
effect upon the existing controversy." Toomer v.
Iowa Dep't of Job Serv., 340 N.W.2d 594, 598 (Iowa
1983) (internal citation omitted). Generally, discharge of a
sentence renders a challenge to the sentence moot. See
Lane v. Williams, 455 U.S. 624, 631, (1982) ("Since
respondents elected only to attack their sentences, and since
those sentences expired during the course of these
proceedings, this case is moot."); Rarey v.
State, 616 N.W.2d 531, 532 (Iowa 2000) (finding that a
challenge to a prison disciplinary action was rendered moot
by absolute discharge of prison sentence); State v.
Wilson, 234 N.W.2d 140, 141 (Iowa 1975) (finding
challenge to propriety of work release revocation moot since
defendant completed his one-year jail term and was released);
Cordova v. State, No. 10-1458, 2013 WL 988898, at *3
(Iowa Ct. App. Mar. 13, 2013) (holding that even if district
court lacked authority to order defendant to complete
assaultive behavior class, defendant's discharge of
sentence rendered the challenge moot); State v.
Ennenga, No. 10-1490, 2011 WL 3480963, at *3 (Iowa Ct.
App. Aug. 10, 2011) (expiration of prison term rendered
challenge to illegal sentence moot).
counters with the "collateral consequences"
exception to the mootness doctrine. This exception applies
"if a judgment left standing will cause the appellant to
suffer continuing adverse collateral consequences."
In re B.B., 826 N.W.2d 425, 429 (Iowa 2013) (citing
Sibron v. New York, 392 U.S. 40, 53-57 (1968)). He
asserts he faces adverse collateral consequences that are
sufficient to warrant exception from the mootness doctrine.
Specifically, he speculates that had he been present at
sentencing he might have persuaded the court to grant him a
deferred judgment. The written guilty pleas make no
suggestion nor even hint of any request for a deferred
judgment. Furthermore, Johnson makes no effort to show he may
have been eligible for a deferred judgment. Deferred judgment
is not available under many circumstances. See Iowa
Code § 907.3(1)(a). That given the opportunity to
exercise his right of allocution, "the district court