STATE OF IOWA, Plaintiff-Appellee, vs. YANCEY ALLEN RUSSELL, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-218 / 08-0497
Filed April 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
YANCEY ALLEN RUSSELL,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Robert A. Hutchinson,
Judge.
Russell appeals from the judgment and sentence following his convictions
of possession of a simulated controlled substance and delivery of a simulated
controlled substance. REMANDED WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, John P. Sarcone, County Attorney, and Steve Bayens, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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EISENHAUER, J.
Yancy Allen Russell was convicted of possession of a simulated controlled
substance and delivery of a simulated controlled substance for acts occurring in
the same transaction. The district court sentenced him to serve indeterminate
terms of imprisonment not to exceed ten years on each count, then ordered the
sentences to merge. Russell appeals, contending the court erred in failing to
merge the two convictions. Although the trial court was not asked to merge the
convictions, an illegal sentence is not subject to the usual requirements of error
preservation and waiver. State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995).
We review challenges to the legality of a district court's merger decision for
correction of errors at law. See State v. Anderson, 565 N.W.2d 340, 342 (Iowa
1997).
Iowa Code section 701.9 (2007) states:
No person shall be convicted of a public offense which is
necessarily included in another public offense of which the person
is convicted. If the jury returns a verdict of guilty of more than one
offense and such verdict conflicts with this section, the court shall
enter judgment of guilty of the greater of the offenses only.
Although the court merged the sentences for Russell’s convictions, Russell
argues the court should have gone further and entered judgment against him on
only one conviction, not both. The State responds by arguing the merger of two
convictions actually means the merger of the judgments of conviction, i.e., the
sentences.
We conclude the district court erred in failing to merge the two convictions.
In the restricted or technical legal sense in which it is sometimes
used, the word ‘conviction’ includes the status of being guilty of,
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and sentenced for, a criminal offense, whether that status is
established after confession of guilt by a guilty plea or after
determination by a jury verdict upon an assertion of innocence.
State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970) (emphasis added). The
two legal convictions must be merged into the greater offense, and sentence
given only on this offense.
Accordingly, we remand for an order merging
defendant’s convictions, and resentencing him.
REMANDED WITH DIRECTIONS.
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