Summary
holding that permanent no-contact order continuing temporary no-contact order and issued two days after sentencing was not part of the defendant's sentence
Summary of this case from State v. GroverOpinion
No. 3-731 / 02-1751
Filed October 29, 2003
Appeal from the Iowa District Court forBlack Hawk County, K. D. Briner, Judge.
Defendant appeals sentence for robbery in the second degree as an habitual offender. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas Ferguson, County Attorney, and Linda Myers, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
JohnHughes was convicted of robbery in the second degree pursuant to Iowa Code sections 711.1 and 711.3 (2001). The court further found him to be an habitual offender under section 902.8. On October 7, 2002, Hughes was sentenced to fifteen years imprisonment pursuant to Iowa Code sections 902.8, 902.9 and 911.2. The court's sentence requires Hughes to serve at least eighty-five percent of the maximum sentence pursuant to Iowa Code sections 902.12 and 903A.2(1)(b). At the time of sentencing, the district court also set bond for Hughes in the event of an appeal. On October 9, 2002, the district court entered an order providing that the no-contact order entered on December 10, 2001 would remain in effect until October 7, 2003.
Hughes appeals the sentence claiming that the "eighty-five percent rule" pursuant to Iowa Code sections 902.12 and 903A.2(1)(b) should only apply to ten years of his sentence and the district court did not have authority to enter a no-contact order as part of his sentence.
We review sentencing decisions for corrections of errors at law. Iowa R.App.P. 6.4. Any sentence not authorized by statue is void. State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994). A trial court's sentencing decision is granted a strong presumption in its favor, and a sentence imposed within statutory limits will be set aside only for an abuse of discretion. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). However, a court may correct an illegal sentence at any time. Iowa R.Crim.P. 2.24(5)( a).
Mandatory Minimum. Hughes argues that Iowa Code sections 902.12 and 903A.2(1)(b), the "eighty-five percent rule," applies only to the maximum sentence of ten years for robbery in the second degree and not the habitual offender enhancement under sections 902.8 and 902.9. The State contends that the code sections were properly applied to the entire fifteen-year sentence.
As an habitual offender, Hughes's maximum sentence was increased from ten years to fifteen years pursuant to Iowa Code section 902.9(3). Under sections 902.12 and 903A.2(1)(b), a person convicted of robbery in the second degree must serve at least eighty-five percent of his maximum sentence. Section 902.12 does not expressly state that the "eighty-five percent rule" applies to the increased sentence as an habitual offender. However, the Iowa Supreme Court has held that habitual offender statutes do not charge a separate offense but only provide for enhanced punishment on the current offense. State v. Woody, 613, N.W.2d 215, 217 (Iowa 2000); State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989); State v. Popes, 290 N.W.2d 926, 927 (Iowa 1980); State v. Smith, 282 N.W.2d 138, 143 (Iowa 1979). Therefore, the requirement under sections 902.12 and 903A.2(1)(b) that inmates serve at least eighty-five percent of their maximum sentence applies to the enhanced sentence for robbery in the second degree under 902.9(3) rather than the unenhanced sentence under 902.9(4). One of the goals of the habitual offender statute is "to punish violators who have not responded to the restraining influence of conviction and punishment." Woody, 613 N.W.2d at 218 (quoting Hajek v. Iowa State Bd. Of Parole, 414 N.W.2d 122, 123 (Iowa 1987)). If Hughes's argument is accepted, a person convicted of robbery in the second degree as an habitual offender under sections 902.8 and 902.9(3) would not necessarily receive a greater punishment than that of a person convicted of robbery in the second degree under sections 711.1 and 711.3, who was not a habitual offender. This would surely defeat the legislature's intent of the habitual offender statute. Woody, 613 N.W.2d at 218. We therefore find no error in the district court's application of Iowa Code section 902.12 or 903A.2(1)(b).
No-Contact Order. Hughes argues the no-contact order issued October 9, 2002, was 1) part of his sentence, 2) not authorized by statute, and 3) therefore an illegal sentence. The State argues that the no-contact order was not a part of the sentence, as such, since Hughes did not challenge the order, error was not preserved on the issue.
At the time of filing this opinion, the no-contact order at issue had expired.
The district court issued its judgment and sentence on October 7, 2002. In the order, the court set out Hughes's sentence and set the amount of bond in the event of an appeal. Two days later the district court entered a separate order continuing the order issued atHughes's initial appearance to have no contact with the victim. The trial court did not continue the no-contact order as part of the sentence. Rather, as a separate matter, not a part of a sentencing, the trial court ordered a one-year extension of the no-contact order so as to prohibit Hughes from contacting the victim prior to beginning his sentence, pending appeal. Hughes's notice of appeal only states he was appealing the "judgment and sentence in this matter, and all adverse ruling inhering therein." No appeal was taken of the later no-contact order. Therefore, this issue is not preserved for our review. Iowa R.App.P. 6.6(1).
For the above reasons, we affirm Hughes's sentence and the district court's no-contact order.