IN THE COURT OF APPEALS OF IOWA
No. 3-1250 / 13-0687 Filed February 19, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
GARY ELDON TRUEBLOOD, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee, Judge.
Defendant appeals from the district court’s order overruling his motion for
correction of an illegal sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya Reddy, Assistant
Appellate Defender, for appellant.
Gary Eldon Trueblood, Fort Dodge, pro se.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney
General, Ricki Osborn, County Attorney, and Jennifer Bonzer, Assistant County
Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. 2
DANILSON, C.J.
Gary Trueblood appeals from the district court’s order overruling his
motion for correction of an illegal sentence. He maintains the district court
violated his constitutional right by overruling his motion without appointing him
counsel. Because we find the issues raised by Trueblood are not properly
described as a challenge to the legality of the sentence, we affirm the district
court’s order overruling his motion.
I. Background Facts and Proceedings.
On September 21, 2011, the State charged Trueblood with six counts of
sexual abuse in the second degree and two counts of sexual abuse in the third
degree. Trueblood accepted a plea agreement and pled guilty to two of the
counts of sexual abuse in the second degree. The State dismissed the other six
counts. Per the agreement, the State and Trueblood jointly recommended that
he receive indeterminate twenty-five-year prison sentences on each count to be
served consecutively for a total indeterminate sentence of fifty years, with a
mandatory minimum of seventy percent to be served before obtaining eligibility
for parole. On April 11, 2012, the district court sentenced Trueblood, accepting
the joint recommendations of Trueblood and the State.
On March 29, 2013, Trueblood filed a pro se motion for correction of an
illegal sentence. In his motion, Trueblood argued the Iowa Department of
Correction’s policy1 pertaining to the sexual offender treatment program was an
1 No copy of the of the department of correction’s policy is included in the district court record, but Trueblood’s motion alleged that the policy requires sex offender inmates to be within three years of their discharge date before they are allowed to enter the required sex offender treatment program and that the program then takes three years to 3
illegal implementation of the court’s sentence, as it would require him to
discharge his entire fifty-year sentence rather than allowing him to be paroled
after serving the mandatory minimum. He also argued the district court’s
imposition of convictions and sentences on two counts of sexual abuse violated
his Fifth Amendment protection against double jeopardy because all of the
alleged sexual abuse acts grew out of one continuous criminal offense with one
victim. Within the motion, Trueblood also asked the court to appoint counsel.
On April 18, 2013, the district court issued a written order overruling
Trueblood’s motion. The court did so without appointing Trueblood counsel.
Trueblood appeals.
II. Standard of Review.
We review de novo a district court decision implicating a defendant’s
constitutional rights. State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010).
III. Discussion.
The Sixth Amendment to the United State Constitution provides, “In all
criminal prosecutions, the accused shall enjoy the right to . . . have the
assistance of counsel for his defense.” “The Sixth Amendment safeguards to an
accused who faces incarceration the right to counsel at all critical stages of the
criminal process.” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004). Although the
defendant has a right to counsel, he may choose to waive the right. State v.
Majeres, 722 N.W.2d 179, 182 (Iowa 2006).
complete. Thus, sex offender inmates are required to discharge their entire sentence, rather than allowing them the opportunity to be paroled after serving the mandatory minimum. 4
Trueblood argues his motion to correct an illegal sentence was a “critical
stage of the criminal process.” He maintains he did not waive his right to counsel
and thus argues the district court violated his constitutional right by failing to
appoint him counsel.
Whether a defendant has a constitutional right to have counsel appointed
to represent him on a motion to correct an illegal sentence is an issue of first
impression. Here, we need not determine the merits of the claim, as even if our
supreme court would decide such a right exists, the two issues raised by
Trueblood are not properly described as a challenge to the legality of his
sentence. See State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009) (“[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 the sentence is outside the statutory bounds or that the
sentence itself is unconstitutional.”)
Neither of Trueblood’s claims states a potential ground for relief from an
illegal sentence. Iowa Rule of Criminal Procedure 2.24(5)(a) states, “The court
may correct an illegal sentence at any time.” Trueblood’s challenge to the Iowa
Department of Correction’s policy regarding when he might be permitted to begin
the required sex offender treatment program is a challenge to the department’s
implementation of his sentence, not the legality of the actual sentence imposed.
Thus, relief may not be granted for the wrongful implementation of a sentence via
a motion to correct an illegal sentence.
Similarly, Trueblood’s second claim—that double jeopardy prevented him
from being convicted and sentenced on more than one count of second-degree 5
sexual abuse because the charges stemmed from a continuing offense involving
only one victim—is also not a proper subject for a motion to correct an illegal
sentence.2 See Iowa Code § 822.2(1)(a) (2011); see also State v. Chadwick,
586 N.W.2d 391, 392–93 (Iowa Ct. App. 1998) (holding that defendant’s motion
to correct an illegal sentence that was actually a Sixth Amendment claim should
have been filed as part of an application for postconviction relief). The rule
permits sentences to be corrected that are beyond the jurisdiction of the court
and are void. Tindell v. State, 629 N.W.2d 357, 359–360 (Iowa 2001). Here,
Trueblood was sentenced to two indeterminate terms of twenty-five years as
authorized for second-degree sexual abuse.
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IN THE COURT OF APPEALS OF IOWA
No. 3-1250 / 13-0687 Filed February 19, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
GARY ELDON TRUEBLOOD, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee, Judge.
Defendant appeals from the district court’s order overruling his motion for
correction of an illegal sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya Reddy, Assistant
Appellate Defender, for appellant.
Gary Eldon Trueblood, Fort Dodge, pro se.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney
General, Ricki Osborn, County Attorney, and Jennifer Bonzer, Assistant County
Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. 2
DANILSON, C.J.
Gary Trueblood appeals from the district court’s order overruling his
motion for correction of an illegal sentence. He maintains the district court
violated his constitutional right by overruling his motion without appointing him
counsel. Because we find the issues raised by Trueblood are not properly
described as a challenge to the legality of the sentence, we affirm the district
court’s order overruling his motion.
I. Background Facts and Proceedings.
On September 21, 2011, the State charged Trueblood with six counts of
sexual abuse in the second degree and two counts of sexual abuse in the third
degree. Trueblood accepted a plea agreement and pled guilty to two of the
counts of sexual abuse in the second degree. The State dismissed the other six
counts. Per the agreement, the State and Trueblood jointly recommended that
he receive indeterminate twenty-five-year prison sentences on each count to be
served consecutively for a total indeterminate sentence of fifty years, with a
mandatory minimum of seventy percent to be served before obtaining eligibility
for parole. On April 11, 2012, the district court sentenced Trueblood, accepting
the joint recommendations of Trueblood and the State.
On March 29, 2013, Trueblood filed a pro se motion for correction of an
illegal sentence. In his motion, Trueblood argued the Iowa Department of
Correction’s policy1 pertaining to the sexual offender treatment program was an
1 No copy of the of the department of correction’s policy is included in the district court record, but Trueblood’s motion alleged that the policy requires sex offender inmates to be within three years of their discharge date before they are allowed to enter the required sex offender treatment program and that the program then takes three years to 3
illegal implementation of the court’s sentence, as it would require him to
discharge his entire fifty-year sentence rather than allowing him to be paroled
after serving the mandatory minimum. He also argued the district court’s
imposition of convictions and sentences on two counts of sexual abuse violated
his Fifth Amendment protection against double jeopardy because all of the
alleged sexual abuse acts grew out of one continuous criminal offense with one
victim. Within the motion, Trueblood also asked the court to appoint counsel.
On April 18, 2013, the district court issued a written order overruling
Trueblood’s motion. The court did so without appointing Trueblood counsel.
Trueblood appeals.
II. Standard of Review.
We review de novo a district court decision implicating a defendant’s
constitutional rights. State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010).
III. Discussion.
The Sixth Amendment to the United State Constitution provides, “In all
criminal prosecutions, the accused shall enjoy the right to . . . have the
assistance of counsel for his defense.” “The Sixth Amendment safeguards to an
accused who faces incarceration the right to counsel at all critical stages of the
criminal process.” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004). Although the
defendant has a right to counsel, he may choose to waive the right. State v.
Majeres, 722 N.W.2d 179, 182 (Iowa 2006).
complete. Thus, sex offender inmates are required to discharge their entire sentence, rather than allowing them the opportunity to be paroled after serving the mandatory minimum. 4
Trueblood argues his motion to correct an illegal sentence was a “critical
stage of the criminal process.” He maintains he did not waive his right to counsel
and thus argues the district court violated his constitutional right by failing to
appoint him counsel.
Whether a defendant has a constitutional right to have counsel appointed
to represent him on a motion to correct an illegal sentence is an issue of first
impression. Here, we need not determine the merits of the claim, as even if our
supreme court would decide such a right exists, the two issues raised by
Trueblood are not properly described as a challenge to the legality of his
sentence. See State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009) (“[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 the sentence is outside the statutory bounds or that the
sentence itself is unconstitutional.”)
Neither of Trueblood’s claims states a potential ground for relief from an
illegal sentence. Iowa Rule of Criminal Procedure 2.24(5)(a) states, “The court
may correct an illegal sentence at any time.” Trueblood’s challenge to the Iowa
Department of Correction’s policy regarding when he might be permitted to begin
the required sex offender treatment program is a challenge to the department’s
implementation of his sentence, not the legality of the actual sentence imposed.
Thus, relief may not be granted for the wrongful implementation of a sentence via
a motion to correct an illegal sentence.
Similarly, Trueblood’s second claim—that double jeopardy prevented him
from being convicted and sentenced on more than one count of second-degree 5
sexual abuse because the charges stemmed from a continuing offense involving
only one victim—is also not a proper subject for a motion to correct an illegal
sentence.2 See Iowa Code § 822.2(1)(a) (2011); see also State v. Chadwick,
586 N.W.2d 391, 392–93 (Iowa Ct. App. 1998) (holding that defendant’s motion
to correct an illegal sentence that was actually a Sixth Amendment claim should
have been filed as part of an application for postconviction relief). The rule
permits sentences to be corrected that are beyond the jurisdiction of the court
and are void. Tindell v. State, 629 N.W.2d 357, 359–360 (Iowa 2001). Here,
Trueblood was sentenced to two indeterminate terms of twenty-five years as
authorized for second-degree sexual abuse. Iowa Code §§709.3(2), 902.9(2).
The sentences were imposed consecutively as permitted in the discretion of the
court. State v. Delaney, 526 N.W.2d 170, 178 (Iowa Ct. App. 1994). The terms
of the sentences were not illegal or unconstitutional in any respect.
Because we find the issues raised by Trueblood are not properly
described as a challenge to the legality of the sentence, we need not address his
other issue concerning the appointment of counsel. We affirm the district court’s
order overruling his motion.
AFFIRMED.
2 We acknowledge the difficulty a self-represented party may face in determining how to raise a particular issue. We also note that a “label attached to a motion is not determinative of its legal significance” and we must look to the content of the motion “to determine its real nature.” Iowa Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393, 395 (Iowa 1988). We also observe that Iowa Code section 822.6 requires the court, in considering an application for postconviction relief, to take into account substance “regardless of form.” However we decline to consider “substance over form” in these circumstances because Trueblood never argued the “substance over form” principle and his motion was filed and docketed in the underlying criminal action, whereas a postconviction-relief proceeding is a civil action and is docketed as a separate action. Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996) (“A postconviction proceeding is a civil action triable at law.”).