State of Iowa v. Michael David Bush

IN THE COURT OF APPEALS OF IOWA

No. 14-0213
Filed February 25, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MICHAEL DAVID BUSH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,

District Associate Judge.

A defendant appeals his sentence following his conviction for failure to

register as a sex offender. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Stephen Holmes, County Attorney, and Keisha F. Cretsinger, Assistant

County Attorney, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.

Michael David Bush appeals his sentence following his conviction for

failure to register as a sex offender, in violation of Iowa Code sections 692A.103,

.104, and .111 (2013). He asserts the district court did not afford him an

opportunity to speak to the court in mitigation of his sentence as required by Iowa

Rule of Criminal Procedure 2.23(3)(d).

Rule 2.23(3)(d) reads in applicable part:

If no sufficient cause is shown why judgment should not be
pronounced, and none appears to the court upon the record,
judgment shall be rendered. Prior to such rendition, 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.

“The court is not required to use any particular language to satisfy rule 22(3)(d).”

State v. Glenn, 431 N.W.2d 193, 194 (Iowa Ct. App. 1988) (discussing a former

version of rule 2.23(3)(d)). “Substantial compliance is sufficient.” Id.

The district court substantially complied with the rule. The court stated:

All right. Thank you. Mr. Bush, I will consider the
recommendations that the attorneys have made here. It is my
decision as to what your sentence will be, as you know; and so I
would also offer you an opportunity to make a statement if you
wish. You’re not required to say anything here today, and I
wouldn’t hold it against you if you didn’t want to speak, but you do
have the right to make a statement if you wish. Is there anything
you would like to say then, Mr. Bush, before I sentence you?
Anything you want to say?

Bush’s attorney responded, “I don’t think so, Your Honor.” Bush did not verbally

respond.

The court’s clear statement notwithstanding, Bush contends the court

failed to “substantially comply with the rule” because the court did “not ask[] [him]
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the question again to have him personally answer.” Our precedent does not

require the court to go this far. See State v. Craig, 562 N.W.2d 633, 637 (Iowa

1997) (“We echo the words of the Supreme Court in Green in recommending that

trial judges leave no room for doubt that a defendant has been given the

opportunity to speak regarding punishment.” (emphasis added) (citing Green v.

United States, 365 U.S. 301, 304 (1961))); State v. Nosa, 738 N.W.2d 658, 660

(Iowa Ct. App. 2007) (same); Glenn, 431 N.W.2d at 195. It is enough if the

defendant is afforded an opportunity to speak. Glenn, 431 N.W.2d at 195. Bush

was afforded this opportunity. Under similar facts, this court held:

Although defendant’s attorney answered this request, we believe
that, given that the court directly addressed the defendant, and the
fact that defendant had just finished testifying, the defendant would
have been aware of his right to speak in court. Even if this were
not so, however, the court called upon both defendant and his
attorney prior to the testimony, as has been previously stated,
specifically addressing each of them to allow for any input
regarding sentencing. We find defendant’s right to allocution was
decidedly not violated.

State v. Bloom, No. 00-2074, 2002 WL 100476, at *2 (Iowa Ct. App. Jan. 28,

2002); see also State v. Garlick, No. 07-1507, 2008 WL 1885762, at *3-4 (Iowa

Ct. App. Apr. 30, 2008) (holding the court’s inquiry—“Does the defendant have

any statement to make at this point in time?”—was sufficient to comply with rule

even though Garlick’s attorney rather than Garlick responded).

We conclude the district court substantially complied with rule 2.23(3)(d).

Accordingly, we affirm Bush’s sentence.

AFFIRMED.