STATE OF IOWA, Plaintiff-Appellee, vs. RICO OSBY, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-212 / 07-2077
Filed April 8, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICO OSBY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Defendant Rico Osby appeals his sentence on two convictions of attempt
to commit murder and two convictions of willful injury. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County
Attorney, for appellee.
Sackett, C.J., and Potterfield and Mansfield, JJ.
2
SACKETT, C.J.
Defendant, Rico Osby, appeals his sentence on two convictions of attempt
to commit murder and two convictions of willful injury in violation of Iowa Code
sections 707.11 and 708.4 (2007). He contends the district court abused its
discretion in denying his counsel an opportunity to make a statement in mitigation
of his sentence. We affirm.
SCOPE OF REVIEW.
We review for an abuse of discretion. State v. Adams, 554 N.W.2d 686,
692 (Iowa 1996).
BACKGROUND.
At defendant’s sentencing the prosecutor spoke and recommended that
the court impose consecutive sentences on all four counts. The district court
asked if defendant wanted to say anything before sentence was pronounced.
Defendant made a statement expressing regret for his actions, explained that he
hears voices telling him to kill, and asked that he be placed in a psychiatric
facility. The prosecutor spoke again, noting to the court the defendant had been
evaluated by a psychiatrist prior to trial and was not determined to be
incompetent.
The victim then spoke to the court.
At the conclusion of the
victim’s statement the court addressed the defendant’s attorney asking, “Mr.
Jellineck? Anything?” Jellineck replied, “No, your Honor.” Sentence was then
imposed.
3
ATTORNEY’S OPPORTUNITY TO MAKE A STATEMENT.
Defendant contends his attorney was denied the opportunity to make a
statement in mitigation of sentence, which defendant contends is mandatory
under Iowa Rule of Criminal Procedure 2.23(3)(d).
The rule provides 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.
We do not agree with defendant that the district court denied his attorney
the opportunity to make a statement in mitigation of the sentence. There is no
evidence that defendant’s counsel sought to speak in mitigation and was denied
the right to do so. Additionally, the district court addressed the attorney during
the sentencing procedure and opened the door in such a way as to provide the
opportunity for the attorney to speak in mitigation.
The court’s comment to defense counsel, “Anything?,” would not be
sufficient to meet the court’s obligation to the defendant, for the burden rests with
the court to make sure the defendant understands he or she has the right to say
anything he or she wants to before sentence is imposed. The sentencing court
must substantially comply with the rules that require the court to ask the
defendant if he or she wants to make a statement in mitigation of punishment
under Iowa Rule of Criminal Procedure 2.23(3)(d), or whether there is any legal
cause why the sentence should not be pronounced under rule 2.23(3)(a). State
v. Craig, 562 N.W.2d 633, 637 (Iowa 1997). There is no need for this rationale to
4
be applied to counsel’s right to speak, since attorneys already know they have
the right to speak on behalf of their clients. All the court needs to do is allow the
attorney to address the court which the district court clearly did here. See United
States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000), cert. denied, 531 U.S. 972
(2000).
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
