IN THE COURT OF APPEALS OF IOWA

No. 19-1031

Filed March 4, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

GEORGE JAMES JACKSON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Story County, James C. Ellefson, 

Judge.

George Jackson appeals the sentencing order correcting his original illegal 

sentence. AFFIRMED. 

Jesse A. Macro Jr. and Cole J. Mayer of Macro & Kozlowski, LLP, West 

Des Moines, for appellant.

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

General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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DOYLE, Judge.

George Jackson contends the sentencing court erred in correcting his 

original illegal sentence without holding a hearing where he could be present. 

Finding no violation of his right to be present, we affirm. 

After negotiations with the State, Jackson pled guilty to the crime of 

domestic abuse assault in violation of Iowa Code section 708.2A(2)(b) (2017), a 

serious misdemeanor.

1

 One convicted of domestic abuse assault must participate 

in a batterers’ treatment program. Iowa Code section 708.2A(10). The “Plea 

Bargain” provision in Jackson’s written guilty plea includes (in bold): “I will also be 

required to complete the Iowa Domestic Abuse Education Program.” The 

prosecutor summarized the terms of joint plea agreement for the court at the plea

hearing, noting one of the terms was that Jackson “complete the . . . Iowa 

Domestic Abuse Program.” During its comprehensive colloquy with Jackson, the 

plea court told Jackson he would have to participate in the domestic abuse 

treatment program. Jackson agreed that was his understanding of the plea 

agreement. At the end of the proceedings, the court accepted the plea, and 

sentencing was scheduled for a later date. 

Inexplicably, the State’s written memorandum of plea agreement failed to 

include the requirement that Jackson participate in the batterers’ treatment

program. Both parties stood by the memorandum of plea agreement at the 

sentencing hearing. The court adjudged Jackson guilty.

2

 During its oral 

pronouncement of Jackson’s sentence, the court did not order Jackson to 

 

1 Jackson also pled guilty to second-degree burglary and stalking.

2 Jackson was also adjudged guilty of second-degree burglary and stalking.
3

participate in a batterers’ treatment program as statutorily required. Nor was the 

requirement in the court’s written sentencing order. Jackson appealed his 

convictions.

A few months after Jackson appealed, the State applied for a nunc pro tunc

order asking the court to require Jackson to complete a batterers’ treatment

program under Iowa Code section 708.2B. The same day the application was 

filed, the court granted the State’s application and entered an order nunc pro tunc,

ordering “that the judgment entry filed October 23, 2017, shall be amended to 

reflect the requirement that [Jackson] complete a batterers’ education program as 

required by Iowa Code Section 708.2B.” The nunc pro tunc order was one issue

considered by this court in Jackson’s appeal. State v. Jackson, No. 17-1816, 2018 

WL 6706216, at *1-2 (Iowa Ct. App. Dec. 19, 2018). 

We concluded Jackson’s original sentence was illegal because it failed to 

order the batterers’ treatment program. Id. at *1. Since the original sentence was 

an illegal one, we held that the nunc pro tunc order did not affect the illegal 

sentence. Id. at *2. We vacated “that portion of the sentence imposed by the nunc 

pro tunc order.” Id.

Under the unique circumstances of this case—where Jackson’s 

written guilty plea recited “I will also be required to complete the Iowa 

Domestic Abuse Education Program,” at the plea hearing the 

prosecutor recited the same requirement when informing the court of 

the plea agreement, the plea-taking court informed Jackson of the 

batterers’ treatment requirement, and the court had no discretion

whether to order the statutorily mandated batterers’ treatment 

program but failed to do so at the time of sentencing—we will not 

require the court to convene a new sentencing hearing. See State 

v. Tenny, 493 N.W.2d 824, 826 (Iowa 1992) (requiring sentencing 

courts “to order all defendants convicted of domestic abuse assault 

to participate in a batterers’ treatment program”). Instead, we 

remand for entry of a corrected sentencing order, which adds the 
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requirement that Jackson participate in a batterers’ treatment 

program as part of his sentence for his conviction of domestic-abuse 

assault, and otherwise includes all provisions in the original 

sentencing order.

Id. at *2. 

Jackson applied for further review challenging our direction that the 

sentence be modified without the need to reconvene sentencing. He contended 

“that if there is to be an amendment to the sentence that he has a right to have the 

modification made in open court while he is present.” He argued, 

A defendant has a right to be personally present at every 

stage of the proceedings in a criminal case. Jackson has not waived 

his right in this matter. Jackson contends that if the plea is not set 

aside, at a minimum a new sentencing hearing should be conducted 

with appropriate notice, opportunity to be present and right to be 

heard.

The supreme court denied Jackson’s application after en banc consideration. 

Procedendo issued. 

Following the directive of this court, the trial court entered a corrected 

sentencing order stating:

The need for this corrected sentencing order was determined 

by the Iowa Court of Appeals in a decision filed December 19, 2018.

Procedendo was filed with the clerk of this court on February 26, 

2019. This corrected sentencing order is intended to comply with the 

decision of the court of appeals and speaks as of the date of the

original filing, October 23, 2017.

The corrected sentencing order provides, “As required to correct the original order, 

the defendant shall complete a batterers’ treatment program as required by Iowa

Code section 708.2B.” Jackson cries foul and appeals.

Jackson argues he had a right under Iowa Rule of Criminal Procedure 

2.27(1) to be present at the correction of his sentence. Rule 2.27(1) provides:
5

Felony or misdemeanor. In felony cases the defendant shall be 

present personally or by interactive audiovisual closed circuit system 

at the initial appearance, arraignment and plea, unless a written 

arraignment form as provided in rule 2.8(1) is filed, and pretrial 

proceedings, and shall be personally present at every stage of the 

trial including the impaneling of the jury and the return of the verdict, 

and at the imposition of sentence, except as otherwise provided by 

this rule. In other cases the defendant may appear by counsel.

Exceptions to the rule do not apply here.

A defendant’s presence is not required under rule 2.27 for a “correction of 

sentence” when the disposition will not be significantly aided by the defendant’s 

presence. See State v. Austin, 585 N.W.2d 241, 245 (Iowa 1998). On the other 

hand, a defendant must be present at proceedings “correcting” a void sentence 

when imposing a new and different sentence. See State v. Johnson, 222 N.W.2d 

453, 458 (Iowa 1974). We have recognized that under the rules of criminal 

procedure, “a distinction exists between proceedings in the district court that 

modify an existing sentence and those that may impose a new sentence after the 

original has been vacated or otherwise set aside.” State v. Cooley, 691 N.W.2d 

737, 741 (Iowa Ct. App. 2004). We concluded “[a] defendant’s presence is not 

required in the former instance, but is in the latter.” Id. Cooley holds “that under 

the Iowa Rules of Criminal Procedure, 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.” Id. “However, a defendant has a right to be 

present and address the court where the court is imposing a new sentence after 

nullification of the original sentence.” Id. 
6

Here, the original sentence was not nullified, set aside, or vacated. It was 

only that portion of the sentence imposed by the nunc pro tunc order that this court 

vacated. Jackson, 2018 WL 6706216, at *2. A whole new sentence was not 

imposed. The sentence was corrected, not modified. The requirement that 

Jackson complete a batterers’ treatment program is mandated by statute. So 

Jackson’s presence would not have aided or added anything to the disposition in 

correcting his sentence. It could be argued that adding the batterers’ treatment 

program makes Jackson’s sentence more onerous. Nevertheless, the Cooley

holding was not violated. Jackson included the requirement he attend a batterers’

treatment program in his written guilty plea presented to the court. He agreed to 

this term when asking the court to accept his plea. He again acknowledged the 

requirement in open court at his plea hearing. No doubt he fully expected his 

sentence to include the batterers’ treatment program provision. So the correction 

of the sentence adds nothing to and is not “more onerous” than the sentence 

Jackson agreed to in his plea. In these unique circumstances, we conclude 

Jackson’s presence was not required at the correction of his sentence.

In any event, the presumption of prejudice presumed from a defendant’s

absence at a critical stage of the proceedings is subject to a harmless error 

analysis. See State v. Atwood, 602 N.W.2d 775, 781 (Iowa 1999). A defendant’s 

absence thus will not always require reversal. See State v. Wise, 472 N.W.2d 278, 

279 (Iowa 1991). Jackson’s acknowledgement and acceptance of the batterers’

treatment requirement at his plea hearing belies and rebuts any prejudice he may 

now claim.
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We conclude Jackson did not have to be present when the district court 

corrected Jackson’s sentence. 

AFFIRMED.