State of Iowa v. Ao Pai Oo ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0661
Filed June 21, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
AO PAI OO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
A defendant appeals the sentence imposed following revocation of a
deferred judgment. AFFIRMED.
Nathan A. Olson of Branstad & Olson Law Office, Des Moines, for appellant.
Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Ahlers, P.J., Badding, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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MULLINS, Senior Judge.
A defendant appeals the sentence imposed following revocation of a
deferred judgment for probation violations.
I. Background
Ao Pai Oo pled guilty to one count of second-degree burglary. In August
2020, the district court granted him a deferred judgment and placed on probation
for two years. A report of probation violation was filed in December. In August
2021, Oo stipulated to violating his probation as alleged in the report and agreed
to thirty days in jail for contempt with continued probation, which the court ordered.
See Iowa Code § 908.11(4) (2021).
A second report of probation violation was filed just weeks later. The matter
proceeded to a revocation hearing in April 2022. At that hearing, Oo stipulated to
violating his probation. The court then questioned Oo:
And you realize that you have a right to have a hearing on this
matter and that the State would have to prove by a preponderance
of the evidence that you violated your probation. Knowing that, do
you still wish to stipulate that you are in violation of your probation?
Through an interpreter, Oo answered in the affirmative.
Thereafter, the State recommended revocation of Oo’s deferred judgment
and imposition of sentence, highlighting his ongoing refusal to comply with
probation. The defense requested continued probation or deferral of disposition.
After the court asked Oo if he wished to make any statements, his interpreter
responded: “He said sorry, but then I asked him to repeat it and he said nothing.”
Given Oo’s failure to comply with probationary requirements, the court
found “that the deferred judgment should be canceled and revoked and the
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defendant adjudged guilty at this time.” The court proceeded to sentence Oo to
ten years in prison. The court stated it determined the sentence was “appropriate
due to the nature and circumstances of the offense, failure of the defendant to
follow the rules on probation, including being absent from any supervision
whatsoever.” In its written sentencing order, the court added its sentencing
decision was based on all available considerations in Iowa Code section 907.5,
with the following factors being the most significant: (1) the nature and
circumstances of the crime, (2) protection of the public from further
offenses, (3) Oo’s criminal history and propensity, and (4) his history of probation
violations.
Oo appeals. See State v. Thompson, 951 N.W.2d 1, 5 (Iowa 2020) (finding
good cause to appeal following guilty plea where defendant was challenging “the
order revoking deferred judgement and entering a judgment of conviction and
sentence”).
II. Analysis
A. Delay in Sentencing
Oo first argues “the district court . . . abused its discretion by not affording
[him] fifteen days between adjudication of guilt and sentencing.”1 We review
alleged defects in sentencing procedure for errors at law. State v. Sandifer, 570
1 Oo also argues the court’s alleged failure to follow the Iowa Rules of Criminal
Procedure as to both delay in sentencing and allocution, discussed below, also
violated his constitutional right to due process. Because the constitutional claims
are only based on his rule-based claims, we only consider his arguments under a
rule-based framework.
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N.W.2d 256, 257 (Iowa Ct. App. 1997). He relies on Iowa Rule of Criminal
Procedure 2.23(1), which provides:
Upon a plea of guilty, verdict of guilty, or a special verdict upon
which a judgment of conviction may be rendered, the court must fix
a date for pronouncing judgment, which must be within a reasonable
time but not less than 15 days after the plea is entered or the verdict
is rendered, unless defendant consents to a shorter time.
But here, Oo entered his plea of guilty and, pursuant to a plea agreement,
requested a deferred judgment and probation, which satisfied the requirement that
he consent to entry of a deferred judgment. See Iowa Code § 907.3(1)(a). By his
consent, judgment was not entered and the court deferred judgment and granted
probation. Proceedings to revoke probation and enter judgment are not governed
by rule 2.23(1), but involve a separate procedure that starts with determining
whether a probation violation has been established. See id § 908.11(4). The
second of the two-step revocation process involves the court “decid[ing] whether
to continue probation or impose any sentence that might originally have been
imposed.” State v. Ferguson, No. 18-1137, 2019 WL 2153100, at *2 (Iowa Ct.
App. May 15, 2019); accord Iowa Code § 908.11(4). In other words, as soon as
“the violation is established,” as it was here, the court has the option to immediately
“impose any sentence which might originally have been imposed.” Iowa Code
§ 908.11(4). So we reject Oo’s claim that he was entitled to a fifteen-day delay.
B. Allocution
Next, Oo argues the court erred by denying him an opportunity to exercise
his right of allocution. It’s true that the entry of the sentence itself must be in
compliance with the rules of criminal procedure. See State v. Lillibridge, 519
N.W.2d 82, 83 (Iowa 1994); State v. Temple, No. 15-1293, 2016 WL 4801610,
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at *4 (Iowa Ct. App. Sept. 14, 2016). And those rules entitle defendants to
personally address the court to make a statement in mitigation of punishment.
Iowa R. Crim. P. 2.23(3)(d). Here, the court received recommendations from the
attorneys as to recommended disposition of the civil revocation issue, not the
criminal sentence, with the State urging for revocation and imposition of sentence
and the defense requesting either continued probation or deferral of disposition.
That said, before the court announced its decisions on both matters, including
punishment, it asked Oo if he wished to make any statements.
When it comes to providing a defendant his opportunity for allocution, “[n]o
special language is required to fulfill the rule’s mandate,” and the question “is
whether the defendant is given an opportunity to volunteer any information helpful
to the defendant’s cause.” State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001)
(citation omitted). We will affirm when there is “a record establishing that the court
has ‘invited, or afforded an opportunity for’ the defendant to speak regarding
punishment.” Id. (quoting State v. Craig, 562 N.W.2d 633, 637 (Iowa 1997)).
Asking the defendant if he wants to say something is generally sufficient. See
Craig, 562 N.W.2d at 635–36 (discussing Green v. United States, 365 U.S. 301(1961)). Here, the court solicited statements from Oo as it pondered both
revocation disposition and the ultimate sentence. So the court asking Oo if he
wished to make any statements provided him an opportunity to personally address
the court to make a statement in mitigation of punishment. Iowa R. Crim.
P. 2.23(3)(d). We reject Oo’s claim that he was denied allocution.
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C. Sentencing Decision
Finally, Oo argues “the district court erred by failing to account for [his] age,
cultural differences, or other mitigating factors when imposing sentence.” 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.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The
district court’s failure to consider the minimum essential sentencing factors is a
defect in the sentencing procedure warranting resentencing. See State v. Zanoni,
No. 14-1720, 2015 WL 3876813, at *1–2 (Iowa Ct. App. June 24, 2015) (noting
“district court must weigh all pertinent factors,” and failure to consider required
statutory factors is “a defect in the procedure”); State v. Fink, 320 N.W.2d 632, 634
(Iowa Ct. App. 1982) (“[T]he trial court is to weigh all pertinent matters in
determining proper sentence, including the nature of the offense, the attending
circumstances, the defendant’s age, character and propensities or chances for his
reform.”).
The court specifically noted its consideration of the statutory sentencing
factors, which include Oo’s age. See Iowa Code § 907.5(1)(a). The minimum
essential sentencing factors do not include cultural differences as a mandatory
consideration. See id. §§ 901.5, 907.5(1); State v. Hopkins, 860 N.W.2d 550, 554–
55 (Iowa 2015). To the extent Oo’s cultural differences could serve as a mitigating
sentencing factor, the court is not required to specifically acknowledge each
mitigating factor. See State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). And
Oo does not actually state what “other mitigating factors” the court allegedly failed
to consider. At the end of the day, the transcript and written sentencing order show
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the court considered various factors in reaching its sentencing decision and
assigned some of those factors more weight than others. We find the court’s terse
and succinct statements regarding its sentencing decision to be sufficient to show
its reasons for its discretionary decision and affirm. See State v. Thacker, 862
N.W.2d 402, 407–08 (Iowa 2015).
III. Conclusion
We affirm the sentence imposed following the revocation of Oo’s deferred
judgment.
AFFIRMED.