STATE OF IOWA, Plaintiff-Appellee, vs. ERIC WAYNE DEMPSEY, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-485 / 08-1611
Filed July 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ERIC WAYNE DEMPSEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Charles H. Pelton,
Judge.
A defendant appeals his conviction and sentence, claiming that counsel
was ineffective for failing to challenge his guilty plea as not being knowing and
voluntary. SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Michael J. Walton, County Attorney, and Joseph Grubisich and Julie
Walton, Assistant County Attorneys, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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VAITHESWARAN, P.J.
Eric Dempsey pleaded guilty to assault with intent to commit sexual abuse
(an aggravated misdemeanor) and second-degree burglary. The district court
sentenced Dempsey to prison, enhancing his sentence based on a prior
conviction.
The court also imposed a special sentence of ten years parole
pursuant to Iowa Code section 903B.2 (2007).
On appeal, Dempsey claims he did not admit to the prior conviction that
enhanced his sentence and he was not informed that his prison term for the
assault crime was mandatory. He asserts trial counsel was ineffective in failing
to challenge his plea on these grounds. Dempsey also asserts that the district
court acted illegally in imposing the special sentence.
I.
Ineffective Assistance of Counsel Claims
A. Prior Conviction
Iowa Code section 901A.2 provides for “enhanced sentencing” for sexually
predatory offenses. It states, in pertinent part,
A person convicted of a sexually predatory offense which is
a serious or aggravated misdemeanor, who has a prior conviction
for a sexually predatory offense, shall be sentenced to and shall
serve twice the maximum period of incarceration for the offense
....
Iowa Code § 901A.2 (1).
Dempsey’s conviction for assault with intent to commit sexual abuse was
a sexually predatory offense and was an aggravated misdemeanor. See Iowa
Code §§ 709.11, 901A.1(1)(a). The question is whether Dempsey admitted to a
prior conviction for a sexually predatory offense. Dempsey argues that he did
not, rendering his guilty plea legally inadequate. The State concedes that the
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district court did not “directly ask him to admit the prior conviction,” but argues
that the record nonetheless discloses a factual basis for the prior conviction.
We agree with the State. The presentence investigation report disclosed
a prior conviction for third-degree sexual abuse, a crime which meets the
definition of a sexually predatory offense.
See Iowa Code §§ 709.4,
901A.1(1)(a). Additionally, the district court deferred acceptance or rejection of
Dempsey’s plea until that report was received. Because the record disclosed the
prior conviction, Dempsey’s failure to admit to the earlier crime did not deprive
the plea of a factual basis. See State v. Keene, 630 N.W.2d 579, 581 (Iowa
2001) (stating the trial court is not permitted to accept a guilty plea without first
establishing that a factual basis exists for such a plea). For the same reason,
defense counsel was not ineffective in failing to challenge the plea on the ground
that Dempsey did not admit to the prior conviction. Id. (stating that if a defendant
enters a guilty plea without a factual basis in the record, defense counsel has
provided ineffective assistance and prejudice is inherent).
Dempsey also suggests that the district court did not question him about
whether he understood the consequences of the prior conviction. See State v.
Kukowski, 704 N.W.2d 687, 692 (Iowa 2005) (noting duty to “ensure the
affirmation is voluntary and intelligent”); State v. McBride, 625 N.W.2d 372, 375
(Iowa Ct. App. 2001) (“In order to knowingly stipulate, a defendant should have
an adequate grasp of the implications of his or her stipulation.”). He maintains
defense counsel was ineffective in failing to challenge this omission.
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The district court in fact disclosed the consequences of a prior conviction.
The court informed Dempsey that he “would be sentenced to serve twice the
maximum period of incarceration.” The court went on to say,
There is also the caveat that the sentence—you must serve 85
percent before being eligible for parole or work release. This would
be on the count—on the sexual—Assault With Intent to Commit
Sexual Abuse. That’s subject to an 85 percent—you are—they are
alleging that you have a previous conviction.
The court then explained the section 901A.2 enhancement, stating:
[T]he Code Section reads that a person convicted of a sexually
predatory offense which is a serious or aggravated misdemeanor—
and that’s what they are alleging, you committed an aggravated
misdemeanor—who has a prior conviction for a sexually predatory
offense shall be and—shall serve twice the maximum period of
incarceration for the offense. So in this case they are alleging an
aggravated misdemeanor, which is normally two years, so twice
that would be up to four years, and then it says notwithstanding any
other provision of the Code to the contrary. Prior to being eligible
for work release, however, a person sentenced under the
subsection shall not have the prison sentence reduced under
Chapter 903A—and that’s the good time and work release—for
more than 15 percent. So on—so that means you are looking at a
four-year, and on that four-year sentence you would have to
serve—regardless of how good you are in prison on that four-year
sentence you would have to serve 85 percent of that one.
When Dempsey indicated he was unaware of these consequences, the district
court gave him time to consult with his attorney and gave him the option of
delaying the proceedings. After conferring with counsel, Dempsey stated he was
ready to proceed and he fully understood the enhancement.
We conclude the district court adequately explained the ramifications of
the prior conviction and counsel was not ineffective in failing to challenge the
plea on this basis.
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B. Mandatory Minimum Sentence
Dempsey contends he was not advised that the enhanced sentence
described above was mandatory. See Iowa R. Crim. P. 2.8(2)(b)(2) (mandating
that before a plea is accepted, the court must determine that the defendant
understands the mandatory minimum punishment for the crime).
He asserts
counsel was ineffective in failing to challenge this claimed omission. See State v.
Kress, 636 N.W.2d 12, 22 (Iowa 2001) (stating counsel ineffective for failing to
correct a district court’s misstatement as to the mandatory minimum sentence
and for failing to file a motion in arrest of judgment raising the issue).
Iowa Code section 901A.2(7) states that a person is not eligible for a
deferred judgment, deferred sentence, or suspended sentence if sentenced
under section 901A.2. The district court told Dempsey that after serving the tenyear burglary sentence, “You could have to start serving the four-year [sentence],
and the worst case scenario is you would serve four of that. The best case
scenario is you serve 85 percent of it.” While this statement does not precisely
explain the mandatory nature of the sentence, we reiterate that Dempsey was
given more time to discuss his possible sentence with his attorney and, after the
discussion, both Dempsey and his attorney stated that any confusion had been
cleared up and Dempsey now fully understood the possible sentence. On this
record, we conclude rule 2.8(2)(b) was not violated and counsel was not
ineffective in failing to challenge the colloquy.
II.
Illegal Sentence
Dempsey next contends that the district court acted illegally in imposing
the special sentence under section 903B.2. That section provided:
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A person convicted of a misdemeanor or a class “D” felony
offense under chapter 709, section 726.2, or 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 a period of ten
years, with eligibility for parole as provided in chapter 906. The
special sentence imposed under this section shall commence upon
completion of the sentence imposed under any applicable criminal
sentencing provisions for the underlying criminal offense and the
person shall begin the sentence under supervision as if on parole.
Iowa Code § 903B.2.1 Under this provision, Dempsey was committed to the
custody of the department of corrections for ten years after the completion of his
sentence. Dempsey argues that this ten-year “parole” period conflicts with the
following two-year parole period set forth in section 901A.2(8):
In addition to any other sentence imposed on a person convicted of
a sexually predatory offense pursuant to subsection 1, 2, or 3, the
1
This provision was amended in 2009, as follows:
A person convicted of a misdemeanor or a class “D” felony offense under
chapter 709, section 726.2, or 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 a period of ten years, with eligibility for
parole as provided in chapter 906. The board of parole shall determine
whether the person should be released on parole or placed in a work
release program. The special sentence imposed under this section shall
commence upon completion of the sentence imposed under any
applicable criminal sentencing provisions for the underlying criminal
offense and the person shall begin the sentence under supervision as if
on parole or work release. The person shall be placed on the corrections
continuum in chapter 901B, and the terms and conditions of the special
sentence, including violations, shall be subject to the same set of
procedures set out in chapters 901B, 905, 906, and 908, and rules
adopted under those chapters for persons on parole or work release. The
revocation of release shall not be for a period greater than two years
upon any first revocation, and five years upon any second or subsequent
revocation. A special sentence shall be considered a category “A”
sentence for purposes of calculating earned time under section 903A.2.
Iowa Code § 903B.2 (2009). The amendment does not affect the issue on appeal.
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person shall be sentenced to an additional term of parole or work
release not to exceed two years.
The State responds that the two provisions are capable of being harmonized. In
its view,
[T]he ten-year special sentence of parole under section 903B.2
would not commence until the completion of the two-year term of
parole or work release under section 901A.2(8), which constitutes
“the sentence imposed under any applicable criminal sentencing
provisions for the underlying criminal offense.” In other words,
when a person’s offense qualifies for both parole provisions, he
must first serve up to two years of parole or work release under
section 901A.2(8); when he is discharged from that parole or work
release, the special sentence in section 903B.2 kicks in and the
person must serve an additional ten years of parole.
We concur with the State’s reading of the two provisions. Section 903B.2
plainly is an additional sentencing provision that is tacked on to section
901A.2(8), rather than an alternate, more general, sentencing provision. But see
State v. Wade, 757 N.W.2d 618, 629 (Iowa 2008) (finding section 903B.2 more
specific than section 903.1(1)(b), the sentencing provision for misdemeanors not
specifying penalty).
As the district court did not sentence Dempsey under section 901A.2(8),
the State asks us to vacate the sentence and remand for “imposition of two years
of parole or work release to be completed before the start of the ten-year special
sentence of parole already imposed.”
An “illegal sentence is a nullity subject to correction, even though
correction may result in an increase in the sentence on remand.”
Draper, 457 N.W.2d 600, 606 (Iowa 1990).
State v.
Because section 901A.2(8) also
applies to Dempsey, we grant the State’s request.
SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.
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