STATE v. GRIEP, 699 N.W.2d 685 (Iowa App. 2005)

No. 5-291 / 04-1397Court of Appeals of Iowa.
Filed May 11, 2005

Appeal from the Iowa District Court for Linn County, Marsha M. Beckelman, Judge.

The defendant appeals from his sentence following conviction for operating a motor vehicle while intoxicated third offense, contending he was not granted his right of allocution.AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Harold Denton, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.

SACKETT, C.J.

Defendant-appellant, Todd Griep, appeals from his sentence following conviction for operating a motor vehicle while intoxicated (OWI), third offense. On appeal, he contends he was not granted his right of allocution as set forth in Iowa Rule of Criminal Procedure 2.23(3)(d). On review for abuse of discretion, we affirm.

Background facts and proceedings.
The defendant was stopped and arrested for OWI and driving while barred. Pursuant to a plea agreement, he pled guilty to OWI third offense and the State dismissed the driving while barred charge and agreed not to make sentencing recommendations to the court. At the sentencing hearing, the court asked, “Okay, Mr. Griep, is there anything that you would like to state to the court at this time?” Before the defendant could answer, his defense counsel interrupted with a request to correct the presentence investigation report. Following a brief interchange with defense counsel, the court imposed sentence.

Claim on appeal.
The defendant contends he was not granted his right of allocution before sentencing. See Iowa R. Crim. P. 2.23(3)(d).

Scope of review.
We review criminal proceedings for errors at law. Iowa R. App. P. 6.4. Our review for defects in sentencing procedure is for an abuse of discretion. State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997); State v. Milsap, 547 N.W.2d 8, 10 (Iowa Ct.App. 1996). Abuse of discretion means the district court’s decision “was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999).

Analysis.
A sentencing court is not required to use any particular language to satisfy rule 2.22(3)(d). State v. Craig, 562 N.W.2d 633, 635 (Iowa 1997). The case before us is not one such as Green v. United States, 365 U.S. 301, 302, 81 S. Ct. 653, 654, 5 L. Ed. 670, 674 (1961) where the court addressed a general inquiry, “Did you want to say something?” and it was unclear whether the question was directed at defense counsel or the defendant. The Court there determined that inquiry was sufficient to satisfy Federal Rule of Criminal Procedure 32(a), which provides, “Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.” In the case before us, rule 2.22(3)(d) requires that “the defendant personally, shall be allowed to address the court where either wishes to make a statement in mitigation of punishment.” There is no question the court was addressing the defendant. As in Green, defense counsel responded and the court did not ask the defendant the question again. Substantial compliance with the rule is sufficient. Craig, 562 N.W.2d at 635. We note, also, that nothing appears in the record to suggest the defendant in fact had any reason why sentence should not be imposed or any statement in mitigation of punishment. See State v. Patterson, 161 N.W.2d 736, 738 (Iowa 1968). We conclude the district court substantially complied with the rule and affirm the defendant’s sentence.

AFFIRMED.