State of Iowa v. Alfred Nicholas Dupree Wiles

                    IN THE COURT OF APPEALS OF IOWA

                                  No. 22-1391
                           Filed December 20, 2023


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALFRED NICHOLAS DUPREE WILES,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Tabitha Turner, District

Associate Judge.



      A defendant appeals the consecutive sentences imposed following

revocation of a deferred judgment and conviction for a domestic abuse assault

offense. SENTENCES VACATED AND REMANDED FOR RESENTENCING.




      Martha J. Lucey, State Appellate Defender, for appellant.

      Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Badding and Chicchelly, JJ.
                                        2


BADDING, Judge.

      Alfred Wiles appeals the sentences imposed following revocation of his

deferred judgment for possession of marijuana, first offense, and conviction for

domestic abuse assault impeding air or blood flow. He claims the district court

imposed illegal sentences by sending him to prison for one year on the marijuana

charge and requiring him to complete the Iowa Domestic Abuse Program “while

incarcerated.”

      The State concedes those two errors but contests the other sentencing

challenges raised by Wiles—that (1) the district court abused its discretion by

failing to (a) consider evidence that Wiles was in therapy, (b) provide Wiles with

his right of allocution, and (c) state reasons for imposing consecutive sentences;

and (2) he was denied due process by the prosecutor’s presentation of evidence

without advance notice.     We vacate the illegal sentences and remand for

resentencing.

I.    Background Facts and Proceedings

      In February 2022, while Wiles was on probation for assault while displaying

a dangerous weapon, he pled guilty to possession of marijuana, first offense. The

district court granted Wiles a deferred judgment and placed him on probation for

one year. The next month, Wiles was charged with domestic abuse assault

impeding air or blood flow causing bodily injury, a class “D” felony. See 

.2A(5) (2022). A probation violation report and two addendums were filed in

both cases in March. Wiles stipulated to these violations in June. That same

month, he pled guilty to a reduced charge of domestic abuse assault impeding air
                                          3


or blood flow, an aggravated misdemeanor. See 

 § 708.2A(2)(d). The parties

agreed they would be “free to argue for any legal sentence.”

       In the weeks after Wiles’s stipulation and guilty plea, two more addendums

to the probation violation report were filed. The report and each addendum stated

Wiles was on probation for possession of marijuana, second offense.1 A combined

hearing on the new violations, the disposition for the prior violations, and

sentencing on the domestic abuse assault charge was held in August. In the

evidentiary phase of the hearing, the district court heard testimony from Wiles’s

probation officer before finding Wiles had violated his probation as alleged in the

two new addendums.

       Moving on to the disposition phase, defense counsel argued that Wiles

should continue on probation.      The court then heard a lengthy statement of

allocution from Wiles, during which he talked about his weekly therapy and a head

injury he had suffered. When Wiles was finished, the State called the probation

officer back to the stand for her recommendation on disposition. She testified that

Wiles had not given her any documentation about his head injury or ongoing

therapy, though he did give her one progress report “of a month or 30 days of his

therapy.” Because “[t]here’s no accountability with this client,” the probation officer

asked the court to revoke his deferred judgment and send him to prison. The State

echoed that recommendation, arguing Wiles was not “a candidate to have

community supervision at this point.”

       The court sided with the State, telling Wiles:


1 That was Wiles’s original charge, but he pled guilty to and was sentenced on the

reduced charge of possession of marijuana, first offense.
                                        4


              Okay. Mr. Wiles, I’ll move on to your new charge momentarily.
      I’ve listened to what you’ve said. I’ve read all of the reports of
      violation. I read all the addendums. I’ve listened to the probation
      officer. And I’ve listened to arguments of your counsel and the State.
              You were placed on probation January 19, 2022, for assault
      with a dangerous weapon. And I reviewed that case as well, and
      what you pled guilty to was assaulting a person and then threatening
      them with a butcher knife. That’s what was written down in your
      petition to plead guilty. We find ourselves back here, and you’ve pled
      guilty to yet another violent crime.
              I don’t have any evidence presented by any party that you are,
      in fact, actively engaged in therapy. I believe that at some point you
      were engaged in therapy, but nobody has given me a progress report
      so I don’t have any evidence that you are, in fact, actively engaged
      in therapy addressing what is clearly some issues since you now
      have two violent crimes that I’m looking at today.
              You have been noncompliant with probation in several
      different ways. You’ve missed probation officer meetings, you
      missed [Iowa Domestic Abuse Program] classes, and you were
      removed from those. . . .
              So when I’m determining what an appropriate sentence is, I
      have to look at two things: One is rehabilitation, and the other is
      protecting the public from further offenses by you. You’ve also
      stipulated to using THC through your probation on at least one
      occasion. I don’t know what else this system can do for you to
      rehabilitate you. . . . And you keep committing these crimes.
              If you didn’t have a new violent conviction—I guess that
      you’ve pled to because we’ve not convicted you yet—I wouldn’t be
      doing what I’m about to do. But you do. So you’re committing violent
      crimes and not seeing that you’re trying to address whatever issue is
      causing you there. So as such, sir, I do not believe that continued
      probation is appropriate in this matter.

The court revoked Wiles’s deferred judgment on the possession-of-marijuana

charge and sentenced him to one year in prison, as the State had requested. The

court also revoked his probation for assault with a dangerous weapon and imposed

“the original sentence of two years in prison.”      Those sentences were run

consecutively to one another.

      With the probation matters finished, the court turned to sentencing on

Wiles’s domestic abuse assault charge. Defense counsel noted his
                                            5


       arguments previously were kind of conjoined in both cases seeing
       probation on the . . . violation matters as well as a probation sentence
       on this charge. Obviously that doesn’t make much sense at this point
       since the Court has now sentenced him to prison on the probation
       violation charge[s], so we would ask in light of everything that’s
       already been discussed here today and based on the arguments that
       have previously been made on the record, that Mr. Wiles be given
       the current sentence concurrent to the probation violation to
       minimize the period of incarceration that he’s to receive.

       The court then stated: “Okay. Just to make sure the record is complete,

since this is a new sentencing, if your client would like to make a statement of

allocution, he can do so at this time.” Wiles began, “Yes. I didn’t have a say in the

last—” but the court cut him off, saying:

             You certainly did, Mr. Wiles. I listened to everything you said
       so now we’re on to a new sentencing. All I want to know is if there’s
       something you would like to say as it relates to what you want me to
       do. You want me to run this concurrent or consecutive?

Wiles answered, “Concurrent.” After the State made its argument for consecutive

sentences, the court gave Wiles another opportunity to speak. He reiterated, “I’ve

been going to my therapy that I’m supposed to be doing. . . . I’ve been doing

everything [the probation officer’s] asked.” When Wiles continued talking about

his therapy, the court cut him off again and said, “I understand. You previously

told me all about your therapy so you don’t need to discuss that anymore.” Wiles

finished by “asking for . . . concurrent sentence if you could.”

       The court rejected that request and sentenced Wiles to a term of

incarceration not to exceed two years, consecutive to the other two charges, for a

total of five years in prison. The court explained:

       I don’t do this lightly, Mr. Wiles, but I am going to run the sentence
       consecutive. And the only reason I’m doing that is because of the
       violent nature of these offenses and the fact that you were on
       probation and committed another violent offense. I deem it
                                        6


       appropriate when I’m considering protecting the public from further
       offenses by you. Probation is denied.

In the sentencing order that followed, the court also ordered Wiles to complete the

Iowa Domestic Abuse Program “while incarcerated.”

       Wiles appeals, challenging only the sentences imposed on his convictions

for possession of marijuana, first offense, and domestic abuse assault impeding

air or blood flow.2 See State v. Thompson, 

, 5 (Iowa 2020) (finding

good cause to appeal following guilty plea where defendant was challenging “the

order revoking deferred judgment and entering a judgment of conviction and

sentence”); see also State v. Damme, 

, 105 (Iowa 2020).

II.    Standard of Review

       We review sentencing decisions for correction of errors at law and “will not

reverse the decision of the district court absent an abuse of discretion or some

defect in the sentencing procedure.” See State v. Formaro, 

(Iowa 2002).

III.   Analysis

       A.      Notice of State’s Sentencing Evidence

       Working in reverse order on Wiles’s claims, we start with his challenge to

the State’s evidence at the disposition phase of the probation revocation hearing.

Citing State v. Ashley, 

 (Iowa 1990), Wiles contends the


2 The appeal does not include the probation revocation or sentence in the assault-

with-a-dangerous-weapon case. See Euans v. State, No. 20-0212, 

, at *3 (Iowa Ct. App. Mar. 30, 2022) (“[T]here is not a right to file a
direct appeal from a probation revocation proceeding where . . . the applicant was
not granted a deferred judgment.”); see also State v. Rheuport, 

 (Iowa 1975); State v. Farmer, 

, 90–91
(Iowa 1975).
                                          7


prosecutor was required to provide him with notice that his probation officer would

question whether he “had a traumatic brain injury and if he was participating in

therapy” during her testimony. He argues this error “materially impacted” his

sentence for domestic abuse assault impeding air or blood flow, necessitating

resentencing in both cases. We reject this claim for several reasons.

       First, we find that Wiles failed to preserve error on this issue. See Top of

Iowa Coop. v. Sime Farms, Inc., 

 (Iowa 2000) (“In view of the

range of interests protected by our error preservation rules, this court will consider

on appeal whether error was preserved despite the opposing party’s omission in

not raising this issue at trial or on appeal.”). Wiles did not object to the probation

officer’s testimony that she did not have documentation about his head injury or

ongoing therapy, though he did cross-examine her on those issues. “[W]hile many

sentencing issues defy the normal rules of error preservation, this one doesn’t.”

State v. Carter, No. 22-1016, 

, at *3 (Iowa Ct. App.

Mar. 29, 2023) (citing State v. Gordon, 

 (Iowa 2018), which held

that error-preservation rules applied to due-process challenge to risk assessment

tools used at sentencing); see also State v. Graham, 

(Iowa 2017) (declining to address a sentencing due process issue that was not

raised in district court).

       Second, even if Wiles could raise this issue for the first time on appeal, the

court’s holding in Ashley regarding notice of the State’s sentencing evidence

appears limited to cases in which a presentence investigation report has been

ordered. See 

 (“The basic requirements of due process and fair

notice have been codified in Iowa Code sections 901.3 and 901.4, and we believe
                                           8


that failure to provide the statutory notice renders such evidence inadmissible on

the issue of sentencing.” (emphasis added)); see also 

, .4

(setting out requirements for presentence investigation reports). No presentence

investigation report was ordered here. Wiles does not provide any authority for his

argument that the “lack of a presentence investigation report does not remove the

prosecutor’s duty to provide advance notice of the sentencing evidence.”

       Third, unlike Ashley, the matters that Wiles complains about were not

uncharged offenses. Cf. 

 (finding that information about a

defendant’s “alleged misrepresentations” that was available to the State before

sentencing “must be a part of the presentence investigation report”). They were

instead a response to issues that Wiles himself brought up during his statement of

allocution to the court.    Wiles has not explained how his probation officer’s

testimony about a topic he introduced into the proceeding violated his right to due

process. See State v. Drake, 

 (Iowa 1977) (“A judgment in a

criminal case will not be disturbed because of sentencing procedures unless there

is a showing of abuse of discretion, procedural conduct prejudicial to defendant,

circumstances which manifest inherent unfairness and injustice, or conduct which

offends the public sense of fair play.” (citation omitted)).

       B.     Sentencing Considerations

       Evidence of therapy. In a related claim, Wiles asserts the district court

abused its discretion by “erroneously conclud[ing] that it lacked ‘any evidence

presented by any party that you are, in fact, actively engaged in therapy.’” Wiles

contends this was erroneous because he told the court that he was in therapy.

But, as the State points out, the court was not required to believe Wiles. See State
                                         9


v. Wingfield, No. 22-1415, 

, at *2 (Iowa Ct. App. Sept. 27, 2023)

(“As to Wingfield’s contention that the court ignored his expression of remorse, the

court was not required to take his statements, either at sentencing or to the

[presentence investigation] interviewer, at face value.”).     In any event, this

statement was limited to Wiles’s illegal sentence for the possession-of-marijuana

charge, which we are vacating. So we need not address it further.

       Right of allocution. Wiles next asserts that he was denied allocution before

the court sentenced him on his conviction for domestic abuse assault impeding air

or blood flow. Iowa Rule of Criminal Procedure 2.23(3)(d) entitles defendants to

personally address the court to make a statement in mitigation of punishment.

When it comes to providing a defendant with this opportunity, “[n]o special

language is required to fulfill the rule’s mandate.”      State v. Lumadue, 

 (Iowa 2001). Instead, the question “is whether the defendant is

given an opportunity to volunteer any information helpful to the defendant’s cause.”

 (citation omitted).

       The record shows the court gave Wiles several opportunities to speak—first

at the revocation disposition and then twice during the sentencing for the domestic

charge. See State v. Oo, No. 22-0661, 

, at *2 (Iowa Ct. App.

June 21, 2023) (rejecting defendant’s claim that he was denied allocution where

the court “solicited statements from Oo as it pondered both revocation disposition

and the ultimate sentence”). “Asking the defendant if he wants to say something,”

like the court did here, “is generally sufficient.” Id.; accord State v. Craig, 

 (Iowa 1997) (noting substantial compliance with the rule is
                                        10


sufficient and discussing cases finding such compliance). We accordingly reject

this claim.

        Reason for consecutive sentence.        Finally, Wiles asserts the court

impermissibly relied on “the violent nature of these offenses” in determining

consecutive sentences were appropriate. He contends “[p]ossession of marijuana

is not a violent offense.” True. But that was not the only offense before the court.

Wiles was on probation for assault with a dangerous weapon—a butcher knife—

when he was charged with domestic abuse assault impeding air or blood flow. So

we do not find the court abused its discretion in relying on “the fact that [Wiles]

w[as] on probation and committed another violent offense” in determining

consecutive sentences were appropriate. See State v. Rawls, No. 18-0882, 

, at *2 (Iowa Ct. App. May 15, 2019) (finding imposition of consecutive

sentences was not an abuse of discretion where defendant “committed multiple

crimes over an extended period, while on probation”).

        C.    Illegal Sentences

        The district court, likely led astray by the probation violation report and

addendums, sentenced Wiles to one year in prison after revoking his deferred

judgment for possession of marijuana, first offense. The State concedes this was

an illegal sentence because the maximum sentence for that offense is six months

in jail. See 

(5). The State also concedes that the district

court did not have the authority to require Wiles to complete the Iowa Domestic

Abuse     Program    while   incarcerated.     See,    e.g.,   State   v.   Gardner,

No. 22-0422, 

, at *2 (Iowa Ct. App. Jan. 11, 2023) (agreeing with

defendant that the court “lacked authority to order him to complete sex-offender
                                        11


treatment while incarcerated”). Though that program is statutorily required upon

conviction of an offense under Iowa Code section 708.2A(2), see 

.2A(10), Wiles is correct that decisions about programming for inmates are

left to the department of corrections. See 

; State v. Smith,

No. 18-2248, 

, at *3 n.6 (Iowa Ct. App. Apr. 14, 2021) (“The

department of corrections may still require Smith to participate in the sex offender

treatment program, but that decision is within the authority of the department, not

the district court.”); accord Dykstra v. Iowa Dist. Ct., 

, 478–79

(Iowa 2010).

       D.      Remedy

       “[I]mposition of a sentence that is not permitted by statute is an illegal

sentence, and such sentence is void and must be vacated.”                  State v.

Suchanek, 

 (Iowa 1982); accord State v. Draper, 

 (Iowa 1990) (“[W]hen a sentencing court departs—upward or

downward—from the legislatively authorized sentence for a given offense, the

pronounced sentence is a nullity subject to correction . . . .”). “When a defendant

is sentenced for multiple offenses and a portion of the sentence is vacated, ‘we

may vacate the invalid part without disturbing the rest of the sentence.’” State v.

Vandermark, 

, 895 (Iowa 2021) (citation omitted). But we are not

required to do so, even if the sentences are severable.          

   “Remand for

resentencing is appropriate when the district court considered the sentences to be

interconnected in imposing them.”            Id.; accord State v. Keutla, 

 (Iowa 2011). We determine that was the case here.
                                         12


       As a result, we vacate Wiles’s sentence for domestic abuse assault

impeding air or blood flow and remand for resentencing on that conviction. We

also reverse the revocation of his deferred judgment, adjudication of guilt, and

sentence imposed for the possession-of-marijuana charge and remand to the

district court “to fashion an appropriate consequence within the authorized range

of choices provided in Iowa Code section 908.11(4).” State v. Bowen, No. 22-

0278, 

, at *3 (Iowa Ct. App. Nov. 17, 2022) (“Because the

sentencing decision here was made as part of the disposition decision of a

probation-revocation proceeding, we put Bowen back in the same position he was

in before disposition was determined.”); accord Keutla, 

(reversing revocation of deferred judgment and remanding to the district court for

resentencing “within the authorized range of choices provided in section 908.11(4)”

where the court viewed the sentencing arrangement “as an interconnected

package”). Because we are vacating the sentences in their entirety, the district

court has full discretion on remand to determine what sentences should be

imposed within statutory limits, including whether the sentences should be

consecutive or concurrent to one another.3 See Bowen, 

, at *3


3 The State cites State v. Austin and argues “it is not necessary for a new
sentencing hearing to occur” because “this involves only a reduction” and
correction of Wiles’s sentences. 

 (Iowa 1998) (holding the
State need not produce defendant at proceeding to correct sentence); see also
Iowa R. Crim. P. 2.27(3)(b). In Austin, however, “the resentencing court was given
specific instructions concerning the entry of the amended sentence.” State v.
Candelaria, No. 04-1103, 

, at *4 n.2 (Iowa Ct. App.
June 15, 2005); accord Austin, 

 (vacating the sentence and
remanding “for imposition of a new sentence to omit the reference to the
restrictions regarding Austin’s eligibility for parole or work release”). Here, we are
not dictating what sentences should be imposed on remand. As a result, the
remand proceeding may be viewed “as the functional analog of the initial
                                        13


(“By requiring a do-over of the probation-revocation disposition, we do not suggest

what disposition should be imposed or that it must be more lenient than imposed

here . . . .”); accord State v. Remmers, 

 (Iowa 1977) (“We do

not intimate that the new sentence must be less than the present sentence . . . .”).

      Lastly, we decline Wiles’s request to mandate resentencing in front of a

different judge because this is not a case where the court considered an improper

sentencing factor. Compare State v. Davison, 

, 289 (Iowa 2022)

(remand for resentencing without specifying that it be done by a different judge

where the district court may have mistakenly believed defendant was ineligible for

parole), with State v. Lovell, 

 (Iowa 2014) (remanding for

resentencing before a different judge where the district court considered an

impermissible sentencing factor); see also State v. Davis, 

, 558

(Iowa 2022) (remanding for resentencing by a different judge where the State

breached a plea agreement).

      SENTENCES VACATED AND REMANDED FOR RESENTENCING.




sentencing proceeding at which [Wiles] would otherwise have a right to be present
and we thus decline to order that the State need not produce him for resentencing.”
Candelaria, 

, at *4 n.2; see also Iowa R. Crim. P. 2.27(1)
(requiring defendant’s presence at the imposition of sentence).