IN THE COURT OF APPEALS OF IOWA
No. 14-1774
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DUANE LUVERNE YATES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
Poulson, Judge.
The defendant challenges two rulings denying him a hearing on issues
related to his sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Duane Luverne Yates, Ft. Madison, appellant pro se.
Thomas J. Miller, Attorney General, Kevin Cmelik and Linda J. Hines,
Assistant Attorneys General, Patrick Jennings, County Attorney, and Terry
Ganzel, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
2
MCDONALD, J.
Almost thirteen years ago, the defendant Duane Yates was convicted of
sexual abuse in the second degree and sentenced to a term of incarceration not
to exceed fifty years. Since the time of his conviction, the defendant has raised
numerous challenges to his conviction and sentence. See State v. Yates, No.
12-2273, 2014 WL 2600212, at *1 (Iowa Ct. App. June 11, 2014) (citing three
appellate court decisions involving the defendant). In his last challenge to his
sentence, the defendant obtained some relief. In that case, our court vacated a
nunc pro tunc sentencing order and remanded the case “for a hearing on the
addition of the applicable section 901A.2(8) provision to Yates’s sentence, with
directions to grant Yates’s request to be present at that hearing.” Id. at 3. On
remand, the district court determined it would not apply the provision, which
authorized an additional term of parole, and declined to hold a hearing on the
matter. The district court also denied Yates’s request for a restitution hearing
that was scheduled to be heard on the date of the cancelled sentencing hearing.
This appeal followed.
Yates contends the district court was required to hold the sentencing
hearing ordered on remand and he was entitled to be present at the sentencing
hearing. The argument is unavailing. The district court determined it would not
impose the additional term of parole, and the decision inured to Yates’s benefit.
A hearing at which the defendant was present was not required under these
circumstances. See Iowa R. Crim. P. 2.27(3)(b) (providing “[t]he defendant’s
presence is not required at a reduction of sentence under rule 2.24.”); State v.
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Cooley, 691 N.W.2d 737, 740 (Iowa 2004) (holding “a defendant’s presence is
not required where a district court is correcting an existing sentence, so long as
the disposition would not be aided by the defendant’s presence and the
modification does not make the sentence more onerous”); Yates, 2014 WL
2600212, at *2 (resolving similar issue regarding removal of section 901A.2(3)
sentencing enhancement).
Yates also argues the district court should have held a restitution hearing
on Yates’s challenge to the restitution order. We review the matter for the
correction of errors at law. See State v. Watts, 587 N.W.2d 750, 751 (Iowa
1998). We look only to the face of the defendant’s petition to determine whether
a hearing was required. See Iowa Code § 910.7 (2013) (providing “the court
shall grant a hearing if on the face of the petition it appears that a hearing is
warranted”). Yates’s petition asserts a challenge to the amount of his court-
appointed attorney’s fees and asserts the amount of his restitution has increased
without notice to him. The challenged restitution order was entered in 2003.
Yates raised a similar challenge to fees more than a decade ago, and our court
affirmed the denial of a restitution hearing in that instance. See State v. Yates,
No. 03-1268, 2005 WL 425458, at *1 (Iowa Ct. App. Feb. 24, 2005). There is
nothing on the face of the petition supporting Yates’s assertion the amount of
restitution ordered has been increased. The record reflects it has not. As in the
prior case, we find no error in the district court’s determination a hearing was
unwarranted.
AFFIRMED.