STATE OF IOWA, Plaintiff-Appellee, vs. DENISE DEE GANDER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-232 / 06-0986
Filed April 25, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENISE DEE GANDER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon Fister and
Monica Ackley, Judges.
Denise Gander appeals from the sentence imposed following the entry of
her guilty pleas to the crimes of conspiracy to manufacture methamphetamine
and two counts of possession of a precursor. AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Adams, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, Joel Dalrymple and Jack
Lammers, Assistant County Attorneys, for appellee.
Considered by Zimmer, P.J., and Miller and Baker, JJ.
2
BAKER, J.
Denise Gander appeals from the judgment entered following her guilty
pleas to the crimes of conspiracy to manufacture methamphetamine and
possession of ephedrine and lithium. We affirm.
I. Background and Facts
On April 23, 2004, Waterloo police officers were called to a local motel in
connection with suspected drug activity. Police gained entry to a motel room and
seized
pills
and
methamphetamine.
paraphernalia
associated
with
the
manufacture
Denise Gander was present in the room.
of
She admitted
involvement in manufacturing methamphetamine.
On April 30, 2004, the State charged Gander with conspiracy to
manufacture more than five grams of methamphetamine in violation of Iowa
Code
section
124.401(1)(b)
(2003),
possession
of
ephedrine
and/or
pseudoephedrine in violation of section 124.401(4), and possession of lithium in
violation of section 124.401(4). On December 16, 2005, Gander entered a plea
of guilty to conspiracy to manufacture less than five grams of methamphetamine
in violation of section 124.401(1)(c) and two counts of possession of ephedrine
and lithium in violation of section 124.401(4). The trial court imposed sentences
of ten, five, and five years, then suspended the sentences in full and placed
Gander on probation for two to five years. Gander appeals.
II. Merits
Gander contends the district court erred in entering judgment and
sentence for both conspiracy to manufacture methamphetamine and possession
of ephedrine and lithium. This issue involves statutory interpretation. Review of
3
the district court’s interpretation of a statute is for errors at law. Iowa R. App. P.
6.4; State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). “Our ultimate goal is to
determine legislative intent.” State v. Smothers, 590 N.W.2d 721, 722 (Iowa
1999). An illegal sentence may be raised at any time. Iowa R. Crim. P. 2.24(5);
State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000).
Gander contends that, because possession of ephedrine and lithium are
public offenses which might be committed pursuant to a conspiracy to
manufacture methamphetamine, she cannot be convicted and sentenced for both
the conspiracy and the public offenses.
Gander argues that the conspiracy
should be merged with the possession counts or, in the alternative, the
possession counts should be merged into the conspiracy.
The State contends that, “to require a merger, the object offense of the
conspiracy and the substantive offense of which the defendant is convicted must
be the same offense.” The State argues that offenses that constitute overt acts
of the same conspiracy do not merge.
Gander’s claim of merger raises an issue of statutory construction.
“‘Statutory construction is properly invoked when a statute contains such
ambiguities or obscurities that reasonable minds may disagree or be uncertain as
to their meaning.’” State v. O'Malley, 593 N.W.2d 517, 518 (Iowa 1999) (quoting
State v. Schlemme, 301 N.W.2d 721, 723 (Iowa 1981)). The ultimate goal is “a
reasonable interpretation and construction which will best effect the purpose of
the statute, seeking to avoid absurd results.” State v. Link, 341 N.W.2d 738, 740
(Iowa 1983).
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“A conspiracy to commit a public offense is an offense separate and
distinct from any public offense which might be committed pursuant to such
conspiracy.”
Iowa Code § 706.4.
“A person may not be convicted and
sentenced for both the conspiracy and for the public offense.” State v. Smith,
476 N.W.2d 86, 91 (Iowa Ct. App. 1991). We have previously held that, when it
enacted section 706.4, “the legislature at least implicitly assumed that the public
offense of which the defendant was convicted would be the same public offense
of which the defendant had been convicted of conspiring to commit.” Id.
Gander was convicted of conspiracy to manufacture methamphetamine
and possession of precursors - ephedrine and lithium. The public offenses of
which Gander was convicted were not the same public offenses of which she
was convicted of conspiring to commit. Moreover, possession of a precursor is
not a lesser-included offense of conspiracy to manufacture methamphetamine.
See State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994) (holding lesser offense is
only included in greater offense if it is impossible to commit the greater offense
without also committing the lesser offense).
Iowa Code section 706.4 is inapplicable because possession of
precursors is not the offense underlying a conviction of conspiracy to
manufacture methamphetamine.
See Smith, 476 N.W.2d at 91 (holding
convictions do not merge pursuant to section 706.4 where offense conspired to
commit is not the same as offense committed).
Although possession of
ephedrine and lithium are public offenses which might be committed pursuant to
a conspiracy to manufacture methamphetamine, possession of precursors is not
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necessary to the offense of manufacturing methamphetamine. Section 706.4
does not apply to Gander’s convictions and sentences.
We have carefully considered all issues raised on appeal and find they
have no merit or are effectively resolved by the foregoing. The judgment of the
trial court is affirmed.
AFFIRMED.
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