State of Iowa v. Robert Ritchie

IN THE COURT OF APPEALS OF IOWA

No. 20-1181
Filed July 21, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ROBERT RITCHIE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan,

District Associate Judge.

Robert Ritchie appeals his sentence after pleading guilty to operating while

intoxicated, second offense. SENTENCE AFFIRMED IN PART AND REMANDED

FOR ENTRY OF A CORRECTED SENTENCING ORDER.

Matthew M. Boles and Adam C. Witosky of Gribble Boles Stewart & Witosky

Law, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.

After entering a plea of guilty, Robert Ritchie appeals his sentence for

operating while intoxicated (OWI), second offense, under Iowa Code section

321J.2 (2019). First, Ritchie claims the district court erred by denying him his right

of allocution. Next, Ritchie asserts his sentence is illegal because the district court

failed to order compliance with recommendations proposed in a substance-abuse

evaluation, as required by Iowa Code section 321J.3(1)(a).1 Lastly, Ritchie argues

the district court abused its discretion by failing to consider a critical health issue

before sentencing him to prison. He requests his sentence be vacated and

remanded for resentencing.

I. Facts and Earlier Proceedings.

Ritchie was charged with OWI, third offense, and driving while his license

was denied or revoked in September 2019. At the initial appearance, the district

court ordered Ritchie to obtain and file a substance-abuse evaluation before his

next court date. Ritchie complied by filing a substance abuse evaluation in

October. As part of a plea agreement negotiated with the State, Ritchie pled guilty

to the amended charge of OWI, second offense, in March 2020. The written plea

stated in part:

1 Iowa Code section 321J.3(1)(a) provides:
In addition to orders issued pursuant to section 321J.2,
subsections 3, 4, and 5, and section 321J.17, the court shall order
any defendant convicted under section 321J.2 to follow the
recommendations proposed in the substance abuse evaluation for
appropriate substance abuse treatment for the defendant. Court-
ordered substance abuse treatment is subject to the periodic
reporting requirements of section 125.86.
3

In exchange for my plea of guilty to the above charges the State and
Defendant jointly recommend minimum fines, fees and surcharges;
and placement at Fort Des Moines Residential Facility. Heather Bell
has been contacted for screening purposes. Further, Count II
[driving while his license was denied or revoked] shall be dismissed.

Sentencing took place in September after multiple continuances due to the COVID-

19 public health emergency and concerns with Ritchie’s asthmatic condition. The

sentencing hearing was not transcribed, and Ritchie did not waive his right to have

the proceeding transcribed. Once he appealed, Ritchie filed a statement of

evidence and proceedings pursuant to Iowa Rule of Appellate Procedure 6.806.

Because the State did not file a response, Ritchie’s rule 6.806 statement, along

with the sentencing order, constitutes the record of the sentencing proceeding on

appeal.

The sentencing order reflects that the court sentenced Ritchie to a term of

incarceration not to exceed two years, electing to not follow the joint

recommendation in the plea agreement that Ritchie go to a residential treatment

facility. Instead, the district court placed Ritchie in the custody of the Iowa

Department of Corrections, and he was eventually sent to prison. Under the

statement of proceedings, Ritchie describes how the proceedings transpired. First,

his counsel protested the sentence noting that the sentencing hearing was

continued in August because placement in the county jail was unsafe in light of

Ritchie’s asthmatic condition and the risk of contracting COVID-19. The court was

unmoved. Ritchie’s counsel pointed to the joint recommendations in the plea

agreement and indicated a representative from the residential treatment facility

was “outside waiting to transport Mr. Ritchie pursuant to the normal protocol both

of the treatment facility as well as the Polk County Attorney’s Office.” The court
4

asked Ritchie whether he had been through the residential treatment facility

before; he said he had in the year 2000. The court then told him he was not eligible

for a return to that facility. Ritchie’s counsel “attempted” to explain that the previous

stint “was part of the normal protocol going through being released from prison.”

According to Ritchie, the court did not allow him or counsel to explain “that Mr.

Ritchie had never been through the Fort Des Moines OWI program.” Ritchie’s

counsel requested a continuance, and again “attempted” to explain the plan was

for Ritchie to go to the residential treatment facility to attend the OWI program.

The court nixed Ritchie’s protests, indicating “it was the date for sentencing and

this was the order of the court.” Ritchie became agitated but was eventually

transported to the county jail. The court set his appeal bond at $15,000 cash only.

He appeals his sentence.

II. Standard of Review and Error Preservation.

Ritchie first argues the district court denied him his right of allocution. We

review for abuse of discretion. State v. Shadlow, No. 11-2047, 11-2048, 2013 WL

263340, at *1 (Iowa Ct. App. Jan. 24, 2013) (citing State v. Craig, 562 N.W.2d 633,

634 (Iowa 1997)). Next, Ritchie claims his sentence is illegal because the district

court failed to order compliance with the recommendations in his substance-abuse

evaluation, a requirement under Iowa Code section 321J.3(1)(a). We review for

correction of errors at law when the legality of a sentence is challenged on non-

constitutional grounds. State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017). Finally,

Ritchie argues the district court abused its discretion in failing to consider a health

issue before sentencing him to prison. We review for abuse of discretion. State
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v. Seats, 865 N.W.2d 545, 552 (Iowa 2015) (“We use the abuse of discretion

standard if the sentence is within the statutory limits.”).

The Iowa Rules of Criminal Procedure allow for the correction of an illegal

sentence at any time. Iowa R. Crim. P. 2.24(5)(a). Sentencing errors “may be

challenged on direct appeal even in the absence of an objection in the district

court.” State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010).

III. Analysis.

To start, we confirm our jurisdiction to hear this appeal. Ritchie pled guilty

to an OWI, second offense, which is an aggravated misdemeanor, and judgment

was entered against him in September 2020. Under Iowa Code section

814.6(1)(a)(3) (Supp. 2019) a defendant must show “good cause” to appeal a final

judgment of sentence from a guilty plea in all cases other than class “A” felonies.

Because Ritchie is challenging his sentence, rather than his guilty plea, he has

satisfied the good cause requirement. See State v. Damme, 944 N.W.2d 98, 105

(Iowa 2020) (“[G]ood cause exists to appeal from a conviction following a guilty

plea when the defendant challenges his or her sentence rather than the guilty

plea.”). So we proceed to resolve his issues.

A. Right of Allocution.

We first address whether Ritchie was afforded his right to allocution, which

is codified in Iowa Rules of Criminal Procedure 2.23(3)(a) and 2.23(d). See also

State v. Nosa, 738 N.W.2d 658, 660 (Iowa Ct. App. 2007). The defendant must

“be asked whether the defendant has any legal cause to show why judgment

should not be pronounced against the defendant.” Iowa R. Crim. P. 2.23(3)(a).

And “counsel for the defendant, and the defendant personally, shall be allowed to
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address the court where either wishes to make a statement in mitigation of

punishment.” Iowa R. Crim. P. 2.23(3)(d).

The problem here is we have no transcript of the sentencing hearing to

confirm whether Ritchie was given an opportunity to speak before pronouncement

of the sentence. Ritchie’s statement of the proceedings, along with the sentencing

order, comprises our sole record. Ritchie claims in his appellate brief he was not

given an opportunity to speak in mitigation of his sentence. We will return to the

sentencing order, but we start by examining Ritchie’s chronological statement of

the proceedings. The State points out Ritchie’s timeline (numbered one through

twenty-six) “does not actually contradict the sentencing order’s statement he was

given an opportunity to speak in mitigation of the sentence.” The statement

generally notes:

7. [The court] read through the procedural background of the
plea and September 10th was the date and time set for sentencing
and proceeded to go forward with sentencing.
8. [The court] sentenced Mr. Ritchie to prison.

We agree with the State on this point; Ritchie’s statement of the proceedings is

actually silent as to whether he was afforded the right to allocution before he was

sentenced. And “[i]t is the appellants duty to provide a record on appeal

affirmatively disclosing the alleged error relied upon.” In re F.W.S., 698 N.W.2d

134, 135 (Iowa 2005). Ritchie’s statement does not specifically detail whether he

was given the opportunity to speak, but he maintains the statement does not

mention allocution “because no opportunity was afforded.”

Returning to Ritchie’s statement of the proceedings, we note it indicates any

attempts to speak against the sentence come after he was sentenced.
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9. At that point, [counsel] indicated to [the court] of the
agreement for Mr. Ritchie to go to the Residential Treatment Facility
pursuant to the plea agreement and Polk County’s procedure
regarding OWIs.
....
13. [The court] asked Mr. Ritchie if he had ever been through
the Fort Des Moines Facility Before.
14. Mr. Ritchie indicated he had gone to the facility in the 2000
calendar year.
15. [The court] said he was not eligible for Fort Des Moines.
16. [Counsel] attempted to explain to [the court] that when Mr.
Ritchie was present at the Fort Des Moines Facility in 2000, it was
as part of the normal protocol going through being released from
prison.
17. [The court] did not allow Mr. Ritchie or [counsel] to explain
that Mr. Ritchie had never been through the Fort Des Moines OWI
program.

The time for such statements comes before judgment is pronounced, not after.

State v. Smith, No. 17-1228, 2018 WL 2084824, at *2 (Iowa Ct. App. May 2, 2018)

(citing Iowa R. Crim. P. 2.23(3)(d)).

Still, Ritchie argues without a transcript of the sentencing hearing the only

affirmative indication that he was offered his right of allocution comes from

boilerplate language in the sentencing order: “[d]efendant was given an opportunity

to speak in mitigation of the sentence.”2 Under this section of his brief, Ritchie

cites several cases supporting his argument that boilerplate language in

sentencing orders alone provides an inadequate record for our review. See State

v. Thacker, 862 N.W.2d 402, 410 (Iowa 2015) (noting court’s failure to adequately

state reasons for sentence could not be solved with boilerplate language in the

sentencing order); State v. Lumadue, 622 N.W.2d 302, 304-305 (Iowa 2001)

2 The district court used a sentencing order template available at
http://www.polkcountyiowa.gov/county-attorney/forms/ (Last accessed June 16,
2021).
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(remanded for resentencing where no right to allocution was afforded the

defendant); State v. Cooper, 403 N.W.2d 800, 802 (Iowa Ct. App. 1987)

(remanding for resentencing where sentencing hearing was not transcribed and

the sentencing order provided only a “vague and generalized” statement of

reasons for the sentence). We note that of the cases cited only Lumadue speaks

to the right of allocution, and there the State conceded the sentencing court failed

to comply with the rule. 622 N.W.2d at 304; see also State v. Duckworth, 597

N.W.2d 799, 800 (Iowa 1999) (holding a sentencing court need not use “any

particular language” to satisfy rule 22(3)(d); “[s]ubstantial compliance is achieved

as long as the district court provides the defendant with an opportunity to volunteer

any information helpful to the defendant’s cause” (citation omitted)). The right of

allocution has been denied where the “record shows the court made no effort to

provide [defendant] with an opportunity to volunteer any information in mitigation

of his sentence.” Duckworth, 597 N.W.2d at 801.

In sum, our decision rests on a battle between Ritchie’s self-authored

statement of the proceedings, which fails to affirmatively state if “proceeded to go

forward with sentencing” means he was not offered his right of allocution, and

boilerplate language in the sentencing order saying he was. The scales tip against

Ritchie because “[w]e afford the strong presumption of regularity to the sentencing

court due to the great confidence we place in our judges to exercise their discretion

appropriately.” State v. Goad, No. 17-1057, 2018 WL 2084834, at *1 (Iowa Ct.

App. May 2, 2018) (citing State v. Sailer, 587 N.W.2d 756, 764 (Iowa 1998)).

Accordingly, we find no abuse of discretion and decline to grant Ritchie’s request

for resentencing on this basis.
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B. Failure to Comply with Section 321J.3(1)(a).

Next, Ritchie requests resentencing because the district court failed to order

compliance with the recommendations in his substance-abuse evaluation. Ritchie

correctly posits that the district court was mandated to order compliance with the

recommendations from the substance-abuse evaluation. See Iowa Code

§ 321J.3(1)(a) (providing “the court shall order any defendant convicted under

section 321J.2 to follow the recommendations proposed in the substance abuse

evaluation” (emphasis added)); see also State v. Smith, No. 14-1567, 2015 WL

6509509, at *2 (Iowa Ct. App. Oct. 28, 2015) (finding Iowa Code section

321J.3(1)(a) “requires the sentencing court to enter an order in line with the

recommendations of the substance abuse evaluation.”). That was not done here,

thus Ritchie’s sentence is illegal. The State concedes this point,3 but urges the

proper remedy is an order to correct the omission by the filing of a corrected

sentencing order rather than convening a hearing for resentencing.

We agree with the State’s proposed remedy. First, almost a year before the

sentencing, the filed substance-use assessment recommended Ritchie participate

in an outpatient treatment program. The report noted Ritchie agreed with the plan

and was directed to an admissions appointment to start treatment. This is similar

to the situation found in State v. Jackson, No. 17-1816, 2018 WL 6706216, at *1-

2 (Iowa Ct. App. Dec. 19, 2018), where a panel of our court remanded for entry of

3The State also asks we adopt an exception, analogous to two exceptions we allow
where district courts fail to order the preparation of a substance-abuse evaluation
for defendants convicted for a second or subsequent OWI charge. See State v.
Johnson, 569 N.W.2d 603, 604 (Iowa 1997). “(1) [W]hen the court receives the
substantial equivalent of a substance abuse evaluation; and (2) when the public
interest in securing an evaluation has been fully served.” Id. We decline to do so.
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a corrected sentencing order to add the statutorily mandated batterers’ treatment

program requirement. In Jackson, the defendant agreed in the written guilty plea

that he was required to complete the batterers’ treatment program because of his

charge of domestic abuse assault. 2018 WL 6706216, at *1; see also Iowa Code

§ 708.2A(10). There, as here, the district court did not order the defendant to

participate in the mandatory program at the oral pronouncement of sentence or in

the sentencing order. Jackson, 2018 WL 6706216, at *1. Resentencing was not

required in Jackson because the defendant, like Ritchie, knew he had to participate

in the program. Id. We find the same remedy is proper here.

C. Sentencing Decision.

Finally, Ritchie argues the district court abused its discretion because it failed

to consider his health risk from COVID-19 in light of his chronic asthma when it

decided to impose a jail sentence. He claims the district court “completely

disregarded” this concern. “Our task on appeal is not to second guess the

sentencing court’s decision but to assess ‘if it was unreasonable or based on

untenable grounds.’” State v. Deschepper, No. 18-2188, 2020 WL 1049860, at *1

(Iowa Ct. App. Mar. 4, 2020) (citation omitted). Here, the district court was well

aware that Ritchie was at an elevated risk from COVID-19 because of his asthma.

In the court filings, Ritchies offered a note from his doctor describing the risk, and

sentencing had been continued several times due to COVID-19 concerns. While

the district court had a duty to consider all relevant circumstances in sentencing

Ritchie, the sentence should “provide [the] maximum opportunity for the

rehabilitation of the defendant, and for the protection of the community from further

offenses by the defendant and others.” Iowa Code § 901.5. In that analysis, “the
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district court is to weigh all pertinent matters in determining a proper sentence,

including the nature of the offense, the attending circumstances, the defendant's

age, character, and propensities or chances for reform.” State v. Johnson, 513

N.W.2d 717, 719 (Iowa 1994). The district court weighed the health risks

associated with Covid-19 but was not required to specifically address each

mitigating circumstance Ritchie urged. See State v. Hill, No. 20-0759, 2021 WL

1400722, at *1-2 (Iowa Ct. App. April 14, 2021). The district court imposed a two-

year indeterminate sentence, within the statutory limit, and provided an adequate

statement of reasons for its decision. We find no abuse of discretion. See State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002) (holding a sentence within statutory

limits “is cloaked with a strong presumption in its favor, and will only be overturned

for an abuse of discretion or the consideration of inappropriate matters.”).

IV. Conclusion.

We find the sentencing court did not deny Ritchie his right of allocution.

Likewise, we find no abuse of discretion in the sentence imposed. However, we

remand to the district court for entry of a corrected sentencing order requiring

Ritchie to comply with the recommendations in his substance-abuse evaluation.

All other provisions of the sentencing order shall remain unchanged.

SENTENCE AFFIRMED IN PART AND REMANDED FOR ENTRY OF A

CORRECTED SENTENCING ORDER.