from the Iowa District Court for Scott County, Thomas G.
Kucharo, now known as Sarah Ford, appeals following her
guilty plea to possession of marijuana with intent to deliver
and failure to affix a drug tax stamp.
D. Puryear and Eric S. Mail of Puryear Law, P.C., Davenport,
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
VAITHESWARAN, Presiding Judge.
Kucharo, now known as Sarah Ford, pled guilty to possession
of marijuana with intent to deliver and failure to affix a
drug tax stamp. The district court deferred sentence and
judgment and placed her on probation for two years.
time, the State applied to revoke Kucharo's probation
based on her failure to maintain employment, her apparent
change of residence without approval, and a positive
marijuana test. Kucharo stipulated to a probation violation.
Following a hearing, the district court revoked her deferred
judgment and probation and imposed a prison sentence and
appeal, Kucharo contends the district court erred in (1)
"failing to advise [her] of her right to allocution and
[in] failing to ask whether there were any legal reasons that
judgment should not be pronounced" and (2)
"considering unproven allegations in sentencing
Right to Allocution
Rule of Criminal Procedure 2.23(3)(d) requires a showing of
"sufficient cause . . . why judgment should not be
pronounced" and states a "defendant
personally" should be allowed to speak to the court
"in mitigation of punishment." "Together,
these requirements are referred to as a defendant's right
to allocution." State v. Birch, No. 99-1833,
2000 WL 1520258, at *1 (Iowa Ct. App. Oct. 13, 2000). A
district court imposing sentence following a revocation of
probation must comply with the rule. See State v. Lillib
ridge, 519 N.W.2d 82, 83 (Iowa 1994).
district court did so. After questioning Kucharo about
whether she understood the State's burden of proof and
after confirming Kucharo wished to stipulate to the probation
violation, the court asked, "Have you had sufficient
time to discuss with your attorney what the State would have
to prove and the potential penalties you may receive?"
Kucharo responded, "Yes." The court elicited
sentencing recommendations from the attorneys, then asked the
following question: "Ms. Kucharo, is there anything you
would like to tell me today?" Kucharo responded,
"No, thank you." The court's question opened
the door for a statement from Kucharo as to why judgment
should not be pronounced. The question also satisfied the
court's obligation to offer the "defendant
personally" an opportunity to speak in mitigation of
punishment. See Iowa R. Crim. P. 2.23(3)(d).
is a well-established rule that a sentencing court may not
rely upon additional, unproven, and unprosecuted charges
unless the defendant admits to the charges or there are facts
presented to show the defendant committed the offenses."
State v. Formaro,638 N.W.2d 720, 725 (Iowa 2002).
Kucharo asserts, "The Court heard information concerning
[her] pending charges throughout the hearing" but
"did not expressly disclaim the reliance on these
outside, unproven allegations in the determination of ...