IN THE COURT OF APPEALS OF IOWA
No. 15-1060 Filed May 3, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
DAVID WINSLOW DUNHAM, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
The defendant appeals the denial of his pro se motion to correct an illegal
sentence for his conviction of possession of methamphetamine with intent to
deliver in violation of Iowa Code section 124.401(1)(b)(7) (2012). AFFIRMED.
John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kristin Guddall, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
POTTERFIELD, Presiding Judge.
David Winslow Dunham appeals the denial of his motion to correct an
illegal sentence for his conviction of possession of methamphetamine with intent
to deliver in violation of Iowa Code section 124.401(1)(b)(7) (2012). The district
court sentenced Dunham after a jury trial to an indeterminate thirty-year term of
incarceration based on Dunham’s stipulations that he was a second or
subsequent offender, in violation of Iowa Code section 124.411, and that he was
an habitual offender in violation of section 902.8. Dunham’s conviction was
affirmed by this court in 2015. See State v. Dunham, 13-0220, 2015 WL
3613312 (Iowa Ct. App. June 10, 2015). He then requested relief in the district
court challenging the sentence imposed and raising other matters. The district
court denied his motion. We affirm.
I. Background Facts and Proceedings.
Dunham was charged by trial information with possession of
methamphetamine with intent to deliver in violation of Iowa Code section
124.401(1)(b)(7). The trial information indicated Dunham was a second or
subsequent offender and habitual offender pursuant to Iowa Code sections
124.411 and 902.8, respectively. Pursuant to the second or subsequent offender
and habitual offender provisions, and according to the trial information, Dunham
was convicted in the United States District Court for the Southern District of Iowa
on June 10, 1998, of conspiracy/distribution of a controlled substance, a drug
related felony. The trial information also listed March 23, 1983 felony convictions
of burglary, theft, and terroristic threats in Leavenworth County, Kansas. 3
On or around November 26, 2012, the trial information was amended,
reducing the charge from a class “B” felony under section 124.401(b)(7) to a
class “C” felony under section 124.401(1)(c)(6), as the lab results revealed the
seized methamphetamine was fewer than five grams. During an exchange
between Dunham, his counsel, and the court, Dunham confirmed that he
discussed the second or subsequent offender and habitual offender provisions
with counsel:
THE COURT: The county attorney filed an amended trial information which the Court approved yesterday, November 26, 2012. The amended trial information alleges that the defendant is a second or subsequent offender as well as a habitual offender. Ms. Summers, have you discussed this with your client, Mr. Dunham? DEFENSE COUNSEL: Yes, Your Honor, I have. I’ve talked to David about this, and Mr. Dunham indicates that he would stipulate that he has been convicted of two prior felonies which would enable this to be the habitual offender provision to be enabled and also that this is his second or subsequent drug offense. Is that correct, David? DUNHAM: Yes.
Dunham also confirmed he was the individual convicted in the 1998 felony
conviction, and an attorney represented him during the proceedings:
THE COURT: [I]t’s alleged in the amended trial information that you are the same David W. Dunham who on June 10, 1998 . . . in the United States District Court for the Southern District of Iowa, case number 4:97CR00111, was convicted of conspiracy/distribution of a controlled substance, which was a felony. Do you understand that’s what’s alleged DUNHAM: Yes. THE COURT: And are you willing at this time, then to answer the Court’s questions with respect to this? DUNHAM: Yes. THE COURT: Are you the same David W. Dunham who was convicted as just indicated? DUNHAM: Yes, I am. 4
While on the record, the trial information was amended again, pursuant to
statements from the parties, to correct the date and location of the March 23,
1983 convictions of burglary theft, and terroristic threats in Leavenworth County,
Kansas, to a 1988 conviction of the same charges in Lyon County, Kansas.
Dunham was given an opportunity to resist the amendment; he declined.
Dunham then admitted that he was the same person convicted of the 1988
Kansas convictions:
THE COURT: Do you agree, then, that on March 10, 1988, you were convicted of a felony in the District Court of Kansas, Lyon County, Kansas, the crime being terroristic threats, which was a felony? DUNHAM: There was a burglary, theft, and a terroristic threat. It was a plea agreement, Your Honor. THE COURT: Right. Did you plead only to the terroristic threats, or do you recall? DUNHAM: No. It was a plea agreement. It was all three. THE COURT: You pled to all three. Was one of those a felony? DUNHAM: They were all considered felonies. THE COURT: Do you remember what the sentences would have been? DUNHAM: My sentence was two to seven years, and I went to prison on those.
Dunham also confirmed he was represented by counsel in the Kansas
conviction.
On November 27, 2012, a jury found Dunham guilty of the possession-
with-intent-to-deliver charge pursuant to section 124.401(1)(c)(6), a class “C”
felony. On January 9, 2013, the district court sentenced Dunham, looking first to
section 902.9(3) to determine the ten year indeterminate sentence prescribed for
the violation of section 124.401(1)(c)(6), a class “C” felony. Then, the court
looked to section 902.9(3), which provides that an habitual offender shall be 5
sentenced to no more than fifteen years. The district court next utilized section
124.411(1), which authorizes the court to punish the defendant “for a period not
to exceed three times the term otherwise authorized,” or forty-five years.
Ultimately, the district court sentenced Dunham to an indeterminate thirty-year
term of incarceration, two times the fifteen-year habitual offender sentence,
although the State argued for the maximum multiplier of three.
On June 10, 2015, a panel of our court affirmed Dunham’s conviction after
he appealed on grounds that trial counsel failed to conduct an inadequate
investigation, object to an amendment to the trial information, file a motion to
suppress, and object to evidence on chain-of-custody grounds. Dunham, 2015
WL 3613312, at *1. The court held trial counsel did not have a duty to object to
evidence on chain-of-custody grounds. Id. at *4. The court also held trial
counsel did not have a duty to challenge the amended trial information or file a
motion to suppress. Id. at *2. The court preserved Dunham’s claims for post-
conviction relief regarding trial counsel’s investigation of the case and discovery
practice because the record was inadequate to make a determination on the
issues. Id. at *3–4,
In January 2015, Dunham filed a pro se motion to correct an illegal
sentence arguing his sentence amounted to cruel and unusual punishment under
article I, section 17 of the Iowa Constitution. In February 2015, Dunham filed an
amended pro se motion arguing, in part, the State failed to prove the facts
supporting an habitual-offender violation and a second or subsequent offender
violation. The State filed a resistance to Dunham’s motion. On May 22, 2015,
the trial court denied the motion. Dunham appeals. 6
II. Standard of Review and Jurisdiction.
A. Jurisdiction.
Dunham filed a notice of appeal on June 16, 2015, to initiate review of the
May 22, 2015 district court order denying Dunham’s pro se motion to correct an
illegal sentence. The proper avenue to review an illegal sentence is through a
writ of certiorari. However, we treat Dunham’s notice of appeal as “seeking the
proper form of review” and we “proceed as though the proper form of review has
been requested.” See Iowa R. App. P. 6.108; see also Crowell v. State Pub.
Def., 845 N.W.2d 676, 682 (Iowa 2014) (“When an appeal should have been filed
as a writ of certiorari, our rules of appellate procedure authorize us to consider
the appeal as though it was properly filed as a certiorari action.”).
B. Standard of Review.
We review challenges to the legality of a sentence for correction of errors
at law. State v. Sisk, 577 N.W.2d 414, 416 (Iowa 1998).
We review constitutional challenges to a sentence de novo. State v.
Tripp, 776 N.W.2d 855, 857 (Iowa 2010).
III. Discussion.
Dunham submits two general arguments to this court: (1) the sentence
was illegal because of issues surrounding his stipulations to prior convictions—
such as he was not afforded an opportunity to admit or deny that he was the
individual alleged in the prior offenses; he had a right to a separate jury trial on
the issue of identity in the prior convictions; the court had a duty to inform him of
this right under Iowa Rule of Criminal Procedure 2.19(9); the State failed to prove
his prior convictions; and (2) the sentence was illegal because it violated federal 7
and state constitutional provisions related to cruel and unusual punishment,
equal protection, and double jeopardy.1
Normal error-preservation rules do not apply when a sentence is
challenged for its illegality; Dunham can challenge the illegality of a sentence at
any time. See Iowa R. Crim. P. 2.24(5)(a). “[A] challenge to an illegal sentence
includes claims that the court lacked the power to impose the sentence or that
the sentence itself is somehow inherently legally flawed, including claims that the
sentence is outside the statutory bounds or that the sentence itself is
unconstitutional.” Bruegger, 773 N.W.2d at 871. For example, in State v.
Gordon, the defendant challenged his sentence arguing it was not within the
statutory limits since he was not a habitual offender. 732 N.W.2d 41 (Iowa
2007). The court held the sentence was illegal because the trial court utilized
two felony convictions that occurred on the same day to enhance the defendant’s
sentence, which is contrary to the habitual offender provision requiring “each
offense must be complete as to a conviction and sentencing before commission
of the next in order to qualify for the enhancement of penalty under a habitual
offender statute.” Id. at 43 (quoting State v. Freeman, 705 N.W.2d 286, 291
(Iowa 2005)). Defendants can also attack an illegal sentence at any time on the
basis the sentence amounts to cruel and unusual punishment under state and
1 Dunham raises illegal-seizure, ineffective-assistance-of-counsel, and prosecutorial- misconduct claims in his pro se brief. Dunham cannot use his motion to correct an illegal sentence to attack issues related to the trial. See State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009); Kurtz v. State, 854 N.W.2d 474, 479 (Iowa Ct. App. 2014). Dunham did not raise these issues in the district court, and Dunham can only appeal the legality of his sentence. See id. Dunham also fails to cite authority in support of his equal protection argument against his sentence. Arguments that are not supported by authority are deemed waived by the appellant. See Iowa R. App. P. 6.903(2)(g)(3). Accordingly, we decline to address the above issues on appeal. 8
federal constitutional provisions. See Bruegger, 773 N.W.2d at 870–71. The
purpose of this error-preservation exception is “to permit correction at any time of
an illegal sentence, not to re-examine errors occurring at the trial or other
proceedings prior to the imposition of the sentence.” Id. at 872 (quoting Hill v.
United States, 368 U.S. 424, 43 (1962)); see also Kurtz, 854 N.W.2d at 479.
A. Sentence Enhancement Proceedings.
This error preservation exception does not apply to defects in sentencing
procedures. See Tindel v. State, 629 N.W.2d 357, 359 (Iowa 2001).
Procedurally defective sentences—as opposed to illegal sentences—focus on
how the sentence was imposed rather than the legality of the actual sentence.
See id.; State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (holding a sentence
is illegal if the habitual-offender statute does not apply or “Is one not permitted by
statute”); State v. Vance, 15-0070, 2015 WL 4936328, at *1 (Iowa Ct. App. Aug.
19, 2015). Faulty procedures that are not subject to review on appeal of a
motion to correct an illegal sentence include claims that the trial court did not
satisfy the requirement of rule 2.19(9). See State v. Wilson, 294 N.W.2d 824,
825 (Iowa 1980) (holding a defect in sentencing procedures does not amount to
an illegal sentence because “If we were to expand that concept to encompass
redress for underlying procedural defects, as well, it would open up a virtual
Pandora's box of complaints with no statutorily prescribed procedures for their
disposition nor any time limits for their implementation.”); State v. Wilson, 10-
1859, 2011 WL 2556042, at *2 (Iowa Ct. App. June 29, 2011). In Wilson, for
example, the defendant argued the sentence was illegal “because a record of his
prior convictions was not made as required by [rule] 2.19(9).” 2011 WL 2556042, 9
at *2. The court held, “Wilson does not argue that the sentence imposed was
outside the sentence authorized by statute. The record clearly supports the
habitual offender status and Wilson did not at sentencing, nor does he now deny
that he is an habitual offender with three prior felony convictions.” Id. at *3
(emphasis added). The error preservation exception that applied in Gordon did
not apply to Wilson because Wilson apparently was a habitual offender under the
statute despite the procedural errors; Gordon was not.
During the pendency of this case, the Iowa Supreme Court elaborated on
the constitutional requirements in habitual offender enhancement proceedings
when a defendant admits to prior convictions. See generally, State v. Harrington,
__N.W.2d __, __, 2017 WL 1291343, at *5–6 (Iowa 2017). In Harrington, the
defendant challenged on direct appeal the sufficiency of the habitual offender
proceedings that led to a sentence enhanced under the habitual offender statute.
Id. at *1. The defendant claimed that “the habitual offender colloquy failed to
show his admission to the prior offenses was made voluntarily and intelligently,”
and “the colloquy failed to identify evidence to show he was represented by
counsel or waived counsel in the cases involving the prior convictions.” Id. at *2.
The court held the district court must not accept an admission to prior convictions
without determining the admission was made voluntarily and intelligently through
the following steps:
First, the court must inform the offender of the nature of the habitual offender charge and, if admitted, that it will result in sentencing as a habitual offender for having “twice before been convicted of a felony.” See Iowa Code § 902.8 (2017). The court must inform the offender that these prior felony convictions are only valid if obtained when the offender was represented by counsel or knowingly and voluntarily waived the right to counsel. See Iowa R. Crim. P. 10
2.19(9). As a part of this process, the court must also make sure a factual basis exists to support the admission to the prior convictions. See Iowa R. Crim. P. 2.8(2)(b). Second, the court must inform the offender of the maximum possible punishment of the habitual offender enhancement, including mandatory minimum punishment. Id. In the typical case, the court must ensure the offender understands he or she will be sentenced to a maximum sentence of fifteen years and that he or she must serve three years of the sentence before being eligible for parole. See Iowa Code §§ 902.8, .9(1)(c). If the offender faces a greater mandatory minimum punishment or maximum possible punishment due to the present offense charged, the court must inform the offender of the specific sentence he or she will face by admitting the prior offenses. See In re Yurko, 519 P.2d at 565 (noting an offender must be informed “of the precise increase in the term or terms which might be imposed”); State v. Ross, 729 N.W.2d 806, 812 (Iowa 2007) (“[T]he mandatory minimum sentences prescribed in section 902.12 apply to habitual offenders.”). Third, the court must inform the offender of the trial rights enumerated in Iowa Rule of Criminal Procedure 2.8(2)(b)(4). For the reasons discussed below, the right to a jury in the second trial only pertains to the issue of identity. Any claim by the offender that he or she was not represented by counsel and did not waive counsel in the prior convictions is heard and decided by the district court. Although the offender has no right to a jury trial on these issues, the other rights associated with a trial are applicable at the hearing before the court. Fourth, the court must inform the offender that no trial will take place by admitting to the prior convictions. The court must also inform the offender that the State is not required to prove the prior convictions were entered with counsel if the offender does not first raise the claim.
Id. at *5–6. The court also held that a defendant must file a motion in arrest of
judgment to preserve error, but stated this rule would be applied prospectively.
Id. at *3, *6 (“Finally, we reiterate that the district court must inform the offender
that challenges to an admission based on defects in the habitual offender
proceedings must be raised in a motion in arrest of judgment. The district court
must further instruct that the failure to do so will preclude the right to assert them
on appeal. See Iowa R. Crim. P. 2.8(2)(d).”). 11
Dunham’s case is procedurally distinct from Harrington because Dunham
challenged the sufficiency of his admissions to prior convictions in a motion to
correct an illegal sentence, as opposed to directly appealing alleged errors at the
trial level or through post-conviction proceedings.2 See Harrington, 2015 WL
3613312 at *1. Our limited review of Dunham’s appeal of a motion to correct an
illegal sentence “includes whether ‘the [t]he punishment meted out was . . . in
excess of that prescribed by the relevant statutes, multiple terms were . . .
imposed for the same offense, . . . [or] the terms of the sentence itself [were]
legally or constitutionally invalid in any other respect.’” Bruegger, 773 N.W.2d at
872 (quoting Hill v. U.S., 368 U.S. 424, 430 (1962)). Dunham’s challenge to the
district court’s procedural omissions surrounding his stipulation to the prior
convictions are not challenges to the “the sentence itself.” Id. Dunham claims
procedural error under rule 2.19(9), but he does not suggest the record before
the sentencing court was inadequate to support his habitual offender status.
Wilson, 2011 WL 2556042, at *2. It clearly does; he admitted to the prior felony
convictions. Like Wilson, Dunham’s procedural argument does not amount to an
attack on an illegal sentence. Therefore, it is not subject to our review.
This leaves the remaining issue of whether Dunham’s sentence was legal.
Dunham was found guilty by a jury of possession of a controlled substance with
intent to deliver in violation of Iowa Code section 124.401(1)(c)(6). Dunham also
stipulated that he was a second or subsequent offender, in violation of section
124.411, and an habitual offender, in violation of section 902.8. The maximum
2 We make no determination whether Dunham’s failure to file a motion in arrest of judgment bars review of the procedural deficiencies in the sentencing enhancement proceedings through other appellate avenues, such as post-conviction relief. 12
sentence for a second or subsequent offender and habitual offender for violation
of section 124.401(1)(c)(6) is forty-five years. See Iowa Code §§
124.401(1)(c)(6), 124.411, 902.8, 902.9(3). Dunham was sentenced for a period
not to exceed thirty years. The term was within the statutory period for Dunham’s
conviction. “[T]he exclusion of illegal sentences from the principles of error
preservation is limited to those cases in which a trial court has stepped outside
the codified boundaries of allowable sentencing.” State v. Hochmuth, 585
N.W.2d 234, 237 (Iowa 1998). The record supports Dunham’s status as habitual
offender, and the sentence is within the statutory timeframe.
B. Constitutional Issues.
1. Cruel and Unusual Punishment. Dunham next claims the sentence is
illegal because it amounted to cruel and unusual punishment. Cruel and unusual
punishment is prohibited under the Eight Amendment of the United States
Constitution and article I, section 17 of the Iowa Constitution.3 Punishment is
cruel and unusual if “it inflicts torture, is otherwise barbaric, or is so excessively
severe it is disproportionate to the offense charged.” State v. Cronkhite, 613
N.W.2d 664, 669 (Iowa 2000). “Generally, a sentence that falls within the
parameters of a statutorily prescribed penalty does not constitute cruel and
unusual punishment.” Id.
Iowa utilizes a three-step analysis to determine whether a penalty
amounts to cruel and unusual punishment. The first step “requires a reviewing
3 When a defendant challenges his sentence under both article 1, section 17 of the Iowa Constitution and the Eighth Amendment of the United States Constitution, we analyze the claim under the “more stringent gross-disproportionality review” available under the Iowa Constitution. State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012). 13
court to determine whether a defendant’s sentence leads to an inference of gross
disproportionality.” Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (quoting Bruegger,
773 N.W.2d at 873). In doing so, we balance the gravity of the crime against the
severity of the sentence. Id. “If the sentence does not create an inference of
gross disproportionality, then ‘no further analysis is necessary.’” Id. (citation
omitted). We defer to legislative determinations of punishment, and a sentence
crafted within the statutory guidelines is grossly disproportionate only in rare
circumstances. See State v. Musser, 721 N.W.2d 734, 479 (Iowa 2006).
Dunham was convicted of possession of a controlled substance
(methamphetamine) with intent to deliver in violation of section 124.401(1)(c)(6)
as a habitual offender and a second drug offender and sentenced for a period not
to exceed thirty years, which was authorized by statute. See Iowa Code §§
124.401(1)(c)(6), 124.411, 902.8, 902.9(3). The sentence was fifteen years less
than the maximum allowable sentence under the statute. See id. Prior to this
conviction, Dunham was convicted of a felony drug charge and a felony burglary,
theft, and terroristic threats charge. It is a principle under Iowa law that recidivist
offenders are “more deserving of a longer sentence than a first-time offender.”
Oliver, 812 N.W.2d at 650. These circumstances fall within the narrow elements
of the statutorily proscribed activity. Dunham does not present unique
circumstances that can lead to an inference of gross disproportionality, such as
“a broadly framed crime, the permissible use of preteen juvenile adjudications as
prior convictions to enhance the crime, and a dramatic sentence enhancement
for repeat offenders.” See Bruegger, 773 N.W.2d at 884. Nor can we say
Dunham’s sentence was a dramatic enhancement; it was fifteen years below the 14
maximum allowable sentence. See id. Because the sentence does not create
an inference of gross disproportionality, Dunham’s claim fails, and our cruel-and-
unusual-punishment analysis ends here. See Oliver, 812 N.W.2d at 653.
2. Double Jeopardy. Dunham next argues the imposition of a second or
subsequent offender enhancement and a habitual offender enhancement
amounts to an illegal sentence. In a similar case, the Iowa Supreme Court
upheld a district court’s sentence for a class “C” felony that was enhanced to
fifteen years under the habitual offender provision and an additional three times
the authorized sentence under the second or subsequent offender provision.
See Sisk, 577 N.W.2d at 416. In Sisk, the Iowa Supreme Court upheld a forty-
five year sentence for the defendant’s conviction of delivery of a controlled
substance as a second offender and an habitual offender. Id. The court held,
“[T]he district court properly sentenced defendant by imposing the penalty for an
habitual offender under chapter 902 and then enhancing that sentence pursuant
to section 124.411(1).” Id.
Similarly, the district court enhanced Dunham’s punishment under the
habitual offender provision, tripled the result under the second or subsequent
offender provision, and sentenced Dunham to thirty years, which was fifteen
years less than the maximum allowable sentence under the statutory framework.
Dunham’s sentence was also fifteen years less than the legal sentence in Sisk.
We find the district court imposed a statutorily and constitutionally permissible
sentence and affirm the denial of Dunham’s motion to set aside illegal sentence.
AFFIRMED.