Opinion
No. 5-052 / 04-0781
Filed February 24, 2005
Appeal from the Iowa District Court for Black Hawk County, Jon Fister and James C. Bauch, Judges.
Defendant-appellant, Blaine Freeman, appeals from the sentence imposed following his guilty plea to possession of marijuana, third offense, in violation of Iowa Code section 124.401(5) (2003). SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Defendant-appellant, Blaine Freeman, appeals from the sentence imposed following his guilty plea to possession of marijuana, third offense, in violation of Iowa Code section 124.401(5) (2003). He contends the court erred in imposing sentence for a third offense when his two previous offenses and sentences had not been separate and consecutive. We vacate the sentence and remand for resentencing.
Background facts and proceedings.
On October 12, 2003 police found marijuana in the defendant's pocket during a search incident to arrest. The defendant was charged with possession of marijuana, a third offense, a class D felony. He pled guilty, admitted two prior convictions, and was sentenced to up to five years in prison and a suspended fine. The defendant's first drug conviction was entered on April 21, 1992. His second drug conviction, based on acts occurring on September 21, 1991, was entered on May 4, 1992. The sentence for the first conviction was ordered to be served concurrently with the sentence to be imposed for the second conviction. On appeal, he contends the sentence imposed in the instant case was illegal.
Scope of review.
When a sentence imposed is beyond the court's authority, review is for errors of law. State v. Halterman, 630 N.W.2d 611, 613 (Iowa Ct.App. 2001). "When a court imposes a sentence which statutory law does not permit, the sentence is illegal." State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). The court may correct an illegal sentence at any time. Iowa R. Crim. P. 2.24(5)( a).
Discussion.
The defendant contends the enhancement provisions of Iowa Code section 124.401(5) should be treated as an habitual offender provision like section 908.2. The State contends the enhancement provisions do not focus on the number and order of convictions, but on the persistency of conduct. See State v. Baudler, 349 N.W.2d 493, 495 (Iowa 1984) ("[T]he habitual offender statute focuses on the number of convictions rather than on the persistency of the conduct." (internal quotation omitted)). For the reasons that follow, we must agree with the defendant.
In State v. Conley, 222 N.W.2d 501, 502-03 (Iowa 1974) the court examined the recidivism statute, section 747.5 (1973). That section provided, in pertinent part:
Whoever has been twice convicted of crime, sentenced, and committed to prison, . . . for terms of not less than three years each shall, upon conviction of a felony in this state . . . be deemed a habitual criminal.
The court said: Here the statute defines the conditions for its application. In doing so it makes the nature of the disposition of the two prior convictions determinative of their use as predicates for the greater penalty upon a third conviction. The defendant must have been on each prior occasion "convicted of crime, sentenced, and committed to prison . . . for (a term) of not less than three years. . . ." Significantly, the statute emphasizes conviction and disposition of the prior offense. There can be no recidivism until after conviction of crime and imposition of penalty.
Conley, 222 N.W.2d at 502-03 (citations omitted). In State v. Tillman, 228 N.W.2d 38, 41 (Iowa 1975) the court clarified the rule, saying:
Our statute dictates that each offense must have been complete as to conviction, sentence and commitment to prison before the commission of the next in order that it qualify for application of the enlarged punishment of section 747.5.
The legislature repealed section 747.5 in 1975 and enacted a new recidivism statute, section 902.8, in 1981. It provided, in pertinent part: "An habitual offender is any person convicted of a class `C' or a class `D' felony, who has twice before been convicted of any felony. . . ." It had no requirement that sentence be imposed or a defendant be committed. In State v. Hollins, 310 N.W.2d 216, 217 (Iowa 1981), the court addressed the new statute, asking "whether the rule in Conley and Tillman should persist notwithstanding the change in statutory language." Hollins pled guilty to both the first and second offense on the same day. Id. He did not commit the second offense after he was convicted, sentenced, or committed for the first. Id. The court subscribed to the general rule that "`each succeeding conviction must be subsequent in time to the previous convictions, both with respect to commission of the offense and to conviction.'" Id. at 217-18 (citations omitted).
In State v. Clark, 351 N.W.2d 532, 534 (Iowa 1984), the defendant, as in Hollins, had two previous OWI convictions that occurred on one day. Id. Iowa Code section 321.281(2) (1983) provided, in relevant part:
Section 321.281 was repealed in 1986.
A person convicted of a violation of this section, upon a conviction or a plea of guilty, is guilty of:
a. A serious misdemeanor for the first offense.
b. An aggravated misdemeanor for the second offense.
c. A class "D" felony for a third offense and each subsequent offense.
Clark argued he could not be sentenced under the "third offense" language because he did not commit his second offense after his first conviction. The court answered the question "whether each OWI must be complete as to commission and conviction before the next OWI is committed." Clark, 351 N.W.2d at 536. It held:
We so held as to other crimes in the context of the general recidivism provision in section 902.8. . . . We see no basis for a different rule for the OWI recidivism provision in section 321.281(2).
Id. (citation omitted).
The statutory provision at issue in the instant case is remarkably similar in structure and content to the statute addressed in Clark. Section 124.401(5) (2003) provides, in pertinent part:
Any person who violates this subsection is guilty of a serious misdemeanor for a first offense.
A person who commits a violation of this subsection and who has previously been convicted of violating this chapter or chapter 124A, 124B, or 453B is guilty of an aggravated misdemeanor.
A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter or chapter 124A, 124B, or 453B is guilty of a class "D" felony.
(formatting added). Based on the supreme court's interpretation of virtually identical language in Clark, providing for increasing the seriousness of the offense based on prior offenses or convictions, we see no basis for a different rule for section 124.401(5). We therefore vacate the defendant's sentence and remand for resentencing consistent with this decision.
We recognize a separate line of cases deal with the question whether multiple charges arising from the same acts can be used to increase the seriousness of an offense or enhance the penalty. In State v. Thomas, 275 N.W.2d 422 (Iowa 1979) when the defendant was arrested for reckless driving, her license was under suspension. Thomas, 275 N.W.2d at 423. She had a previous conviction for OWI. Id. at 422. The supreme court interpreted the phrase "separate and distinct" offenses in section 321.555 as allowing both offenses arising from the same event to be counted when determining if the defendant was an habitual offender under that section. Id. at 423. The court determined "separate and distinct" as used in section 321.555 "focuses on the number of convictions rather than on the persistency of the conduct." Id.; State v. Baudler, 349 N.W.2d 493, 495 (Iowa 1984) (holding "that multiple convictions arising out of a single incident are each to be considered" when determining if a defendant is an habitual offender under section 321.555). It also noted "a significant difference in the philosophy behind habitual criminal statutes generally and those dealing with driving violations." Thomas, 275 N.W.2d at 423. The general habitual criminal statutes' "primary concern is rehabilitation." Id.; see Conley, 222 N.W.2d at 503 ("There can be no recidivism until after conviction of crime and imposition of penalty."). In Patchette v. State, 374 N.W.2d 397 (Iowa 1985), the defendant was on a work-seeking furlough from the Mt. Pleasant facility when he left the home where he was staying and "just kept on going." Patchette, 374 N.W.2d at 398. Based on that one act, he was charged with violation of six prison rules and found guilty of five. Under Iowa Code section 246.41 (1981), "for the fifth and each subsequent violation" of the rules, the warden could take away all or any part of the "good time that the convict may have earned." Id. The court concluded section 246.41 was like most habitual criminal statutes, focusing on the "persistency of the conduct rather than solely looking at the number of offenses involved." Patchette, 374 N.W.2d at 401 (contrasting the "graduated punishment on a step-by-step basis" in section 246.41 with the motor vehicle code habitual offender statute, section 321.555, addressed in Thomas). Thomas and Baudler do not control our decision interpreting section 124.401(5).