STATE v. BAKER, 662 N.W.2d 374 (Iowa App. 2003)

No. 2-1045 / 02-0876.Court of Appeals of Iowa.
Filed February 28, 2003.

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

Russell Baker appeals his sentence for possession of methamphetamine with intent to deliver. SENTENCE VACATED;REMANDED FOR RESENTENCING.

Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox and Daniel Voogt, Assistant County Attorneys, for appellee.

Considered by Huitink, P.J., and Mahan and Hecht, JJ.

HUITINK, P.J.

Russell Baker appeals his sentence for possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6) (2001). Baker claims he was denied the opportunity to personally address the court prior to pronouncement of judgment and sentence. We vacate Baker’s sentence and remand for resentencing.

We review sentencing procedures for an abuse of discretion. State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999). An abuse of discretion will only be found if the district court’s discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.

Iowa Rule of Criminal Procedure 2.23(3)(d) provides that prior to the entry of judgment “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 required to invite or afford an opportunity for the defendant to speak regarding punishment. State v. Craig, 562 N.W.2d 633, 637 (Iowa 1997) (citing Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670, 673 (1961)). No special language is required to fulfill the rule’s mandate. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). In fact, substantial compliance is sufficient. Duckworth, 597 N.W.2d at 800. “Substantial 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.” Id.

Our review of the record reveals that the district court engaged Baker in a lengthy colloquy with respect to the withdrawal of Baker’s motion in arrest of judgment. When the court proceeded with sentencing, Baker’s attorney spoke on Baker’s behalf. Baker’s only invitation to speak during sentencing came when the court asked for clarification on the defendant’s criminal history. Baker did not speak on his own behalf concerning mitigation of punishment, nor was he invited to personally do so. The right to allocution is personal to the defendant, and the fact that Baker’s counsel spoke on Baker’s behalf does not render the court’s failure to invite Baker to comment harmless error. Craig, 562 N.W.2d at 637. Even though no special language is required to fulfill the rule’s mandate, we conclude the court failed to substantially comply with Iowa Rule of Criminal Procedure 2.23(3)(d). Lumadue, 622 N.W.2d at 304. Therefore, we vacate Baker’s sentence and remand for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.