STATE OF IOWA, Plaintiff-Appellee, vs. MARK RANDALL TOVAR, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-903 / 07-0258
Filed December 28, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK RANDALL TOVAR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch, Judge.
Mark Randall Tovar appeals the lifetime parole provision of his sentence
for sexual abuse in the third degree.
RESENTENCE VACATED AND
REMANDED FOR REINSTATEMENT OF ORIGINAL SENTENCE.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
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MAHAN, J.
Mark Randall Tovar appeals the lifetime parole provision of his sentence
for sexual abuse in the third degree. He argues that resentencing him to lifetime
parole under Iowa Code section 903B.1 (Supp. 2005) was an illegal sentence
and was also a violation of the Constitution’s prohibition of ex post facto laws and
that his trial counsel was ineffective in failing to object.
We vacate Tovar’s
resentencing and remand to the district court for reinstatement of the original
sentence.
I.
Background Facts and Proceedings
On August 4, 2006, Tovar pled guilty to one count of third-degree sexual
abuse and one count of lascivious acts with a child.
The amended trial
information alleged that the acts occurred between June 1, 2005, and August 27,
2005.
The charges were brought after Tovar’s girlfriend, Sara, reported to the
police on August 27, 2005, that she believed Tovar had sexually assaulted her
seven-year-old daughter, K.C. Sara stated that she had found Tovar and K.C. in
the bathroom together with the door shut. She thought it was strange and asked
K.C. what happened in the bathroom. At the time, K.C. denied that anything
inappropriate had happened. However, on August 27, 2005, K.C. told Sara that
Tovar had her touch and run her hands up and down his penis while she was in
the bathroom with him.
The exact date of the incident was not definitively established. Sara told
the police on August 27, 2005, that she caught Tovar and K.C. in the bathroom
together about one to one-and-one-half months ago. On that same date, after
Tovar was questioned, he signed a statement denying any wrongdoing and
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indicating that he was in the bathroom with K.C. about one to two months ago
running bath water for K.C. when Sara walked in. In the victim’s interview at St.
Luke’s Hospital she indicated the incident happened before she started second
grade.
After entering an Alford plea 1 on August 4, 2006, Tovar was sentenced to
a period not to exceed ten years for sexual abuse in the third degree and not to
exceed five years for lascivious acts with a child.
On August 21, 2006, the
department of corrections sent a letter to Judge Bauch asking if Tovar should
have also been sentenced to a special life sentence of parole for the sex abuse
charge in accordance with section 903B.1. The State then filed a motion for
resentencing asserting the special sentence was mandatory. Tovar resisted. He
argued that he entered his plea with the understanding that he would only be
sentenced to the prison term, and not lifetime parole. However, he declined to
withdraw his guilty plea. Tovar also argued that the resentencing was placing
him in double jeopardy but did not argue the law was an illegal ex post facto law
at the resentencing hearing. The district court resentenced Tovar to add the
lifetime parole provision in accordance with section 903B.1. Tovar appeals.
II.
Standard of Review
We review a claim that a district court has imposed an illegal sentence for
errors at law. State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005).
Normal
error preservation requirements do not apply to void, illegal, or procedurally
1
An Alford plea allows a defendant to voluntarily and intelligently plead guilty even if he
is unwilling or unable to admit his participation in the acts constituting the crime. North
Carolina v. Alford, 400 U.S. 25, 32-38, 91 S. Ct. 160, 164-68, 27 L. Ed. 2d 162, 168-72
(1970).
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defective sentences. State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.
1994).
III.
Merits
Iowa Code section 903B.1 provides that:
A person convicted of a class “C” felony or greater offense
under chapter 709, or a class “C” felony under section 728.12, shall
also be sentenced, in addition to any other punishment provided by
law, to a special sentence committing the person into the custody of
the director of the Iowa department of corrections for the rest of the
person’s life, with eligibility for parole as provided in chapter 906.
Because sexual abuse in the third degree is a class “C” felony, the district court
is required to impose a lifetime parole sentence on third-degree sex abuse
offenders. Iowa Code §§ 709.4, 903B.1. The statute, however, did not go into
effect until July 1, 2005.
Before this time, imposition of lifetime parole was
discretionary. Iowa Code § 903B.1(3) (2005).
Tovar argues that his sentence to lifetime parole pursuant to Iowa Code
section 903B.1 (Supp. 2005) was an illegal sentence because his crime may
have been committed before the effective date of the statute. An illegal sentence
is one not authorized by statute and is void. State v. Gordon, 732 N.W.2d 41, 43
(Iowa 2007). Since the statute imposing the mandatory lifetime parole was not
effective until July 1, 2005, it cannot be used as a sentence for criminal acts
committed before July 1, 2005. The only question in this case is whether Tovar
committed sexual abuse before or after July 1, 2005. If the act was committed
before July 1, 2005, the sentencing enhancement cannot be applied. But if the
act was committed after July 1, 2005, the district court imposed a legal sentence
on Tovar and it should stand. The parties agree to this much.
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The State argues that, although Tovar pled guilty to one count of sex
abuse that occurred between June 1, 2005, and August 27, 2005, it is more
likely, in examining the minutes of testimony, that Tovar committed the crime
after July 1, 2005. There is no way to determine the exact date on which Tovar
committed this criminal act. The State did not prove and the district court did not
make a finding as to the exact date the offense was committed. The State does
not allege Tovar committed multiple acts of sex abuse within the dates specified
in the trial information. It is apparent from the minutes of testimony that the only
act which the State sought to prove was the abuse taking place in the bathroom
of K.C.’s home. It is clear that the witnesses are unsure of the exact date this act
took place. The time that has passed since this incident will only make memories
less clear.
We will not attempt to guess the date on which this criminal act was
committed. See State v. Pilcher, 242 N.W.2d 348, 354-55 (Iowa 1976) (refusing
to guess which sodomy crime defendant was found guilty of when the verdict did
not specify therefore reversing the verdict on the grounds that one of the sodomy
crimes was unconstitutional).
We normally resolve doubts in statutory
construction in favor of the defendant. See State v. Gonzalez, 718 N.W.2d 304,
308 (Iowa 2006); Pilcher, 242 N.W.2d at 354-55. We will do the same here.
Because it was neither proven that Tovar committed the act after July 1, 2005,
nor did he specifically plead guilty to committing the act after July 1, 2005, the
mandatory sentencing enhancement required by section 903B.1 cannot legally
be imposed upon him.
We vacate the district court’s resentencing order
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imposing the lifetime parole and remand to the district court for reinstatement of
the original sentencing order of August 4, 2005.
Tovar also claims his trial counsel was ineffective. In order to prevail on
an ineffective assistance of counsel claim Tovar must show that (1) his trial
counsel failed to perform an essential duty and (2) that he was prejudiced as a
result of counsel’s failure. State v. Stallings, 658 N.W.2d 106, 108-09 (Iowa
2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674, 693 (1984)). If counsel was ineffective, the only prejudice
suffered by Tovar was that he was sentenced to lifetime parole. Our holding
today, vacating that portion of his sentence, resolves this problem. Once the
sentence is vacated, Tovar will have suffered no prejudice and his ineffective
assistance of counsel claim cannot stand.
RESENTENCE VACATED AND REMANDED FOR REINSTATEMENT
OF ORIGINAL SENTENCE.
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