State of Iowa v. Jody Clifford Myers

• Court: Court of Appeals of Iowa
• Decided: August 5, 2015
• Docket: 14-1949
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1949 Filed August 5, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

JODY CLIFFORD MYERS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Fayette County, John J.

Bauercamper, Judge.

Jody Myers appeals his sentence, following a guilty plea, for aiding and

abetting the delivery of a controlled substance as a habitual offender.

AFFIRMED.

James T. Peters, Independence, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, Wayne Saur, County Attorney, and J.D. Villont, Assistant County

Attorney, for appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2

VOGEL, P.J.

Jody Myers appeals the district court’s correction of his sentence,

following a guilty plea, for aiding and abetting the delivery of a controlled

substance as a habitual offender. He asserts the district court erred by providing

a more onerous sentence, in violation of the plea agreement, without notice or

hearing, and in his absence. We conclude the district court properly corrected its

original sentencing order given the previous imposition of the three-year

mandatory minimum constituted an illegal sentence. With regard to Myers’s

other claims, they are waived; consequently, we affirm Myers’s sentence.

In a hearing held on September 3, 2014, Myers entered a plea of guilty to

aiding and abetting the delivery of less than five grams of methamphetamine, in

violation of Iowa Code sections 124.401(1)(c)(6), 703.1, 902.9(3), and 902.8

(2013). The district court held the sentencing hearing immediately following the

acceptance of the plea and imposed the agreed-to term of incarceration of fifteen

years. The court incorrectly informed Myers that he would be required to serve a

three-year mandatory minimum before he would be eligible for parole. The

written sentencing order was consistent with the court’s statement at the hearing.

On October 29, 2014, the court entered a supplemental sentencing order

noting Iowa Code section 124.413(1)1 applied due to Myers’s conviction under

section 124.401(1)(c)(6), and therefore, the mandatory minimum was one-third of

the sentence imposed. Consequently, the supplemental order increased the

mandatory minimum to five years but otherwise affirmed the original order. No

1 The sentencing order stated section 124.13 was the applicable statute; however, this is clearly a scrivener’s error, given the order properly quoted Iowa Code section 124.413(1). 3

hearing was held before the supplemental order was issued. Myers appeals the

sentence.

We review challenges to the legality of a sentence for correction of errors

at law. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). To the extent

Myers raises constitutional issues, our review is de novo. See id.

Iowa Code section 124.413 is a statute that requires the defendant serve

a one-third mandatory minimum of the maximum sentence imposed, when he is

convicted pursuant to section 124.401. See id. § 124.413(1) (“A person

sentenced pursuant to section 124.401 . . . shall not be eligible for parole until the

person has served a minimum period of confinement of one-third of the

maximum indeterminate sentence prescribed by law.”); see also State v. Draper,

457 N.W.2d 600, 604–05 (Iowa 1990).2 A sentence that is too lenient, that is,

one that only requires the defendant to serve less than the one-third mandatory

minimum, constitutes an illegal sentence. See Draper, 457 N.W.2d at 605.

Here, the term of incarceration Myers was ordered to serve was fifteen

years, and therefore, pursuant to section 124.413, the mandatory minimum was

five years. Thus, the court’s original sentence imposing a three-year mandatory

minimum constituted an illegal sentence. See Draper, 457 N.W.2d at 605 (noting

the district court is not permitted to disregard the mandates of the statute

specifically defining mandatory minimums). An illegal sentence may be

corrected at any time. See Bruegger, 773 N.W.2d at 871–72. Consequently, the

2 Iowa Code section 124.401 (2013) has been transferred from Iowa Code section 204.413 (1993), the code section to which Draper, 457 N.W.2d at 604-605, refers; however, the mandates contained in the statute remain the same. Compare Iowa Code § 124.401 (2013), with id. § 204.413 (1993). 4

district court properly entered a substituted order imposing the five-year

mandatory minimum, rather than its original three-year minimum.

Myers also claims his procedural rights were violated because the district

court did not provide him a hearing or notice, and it did not follow the plea

agreement. However, the plea agreement in this record has no mention of the

mandatory minimum. In addition, Myers failed to cite any authority for his

arguments; consequently, they are waived. See Iowa R. App. P. 6.903(2)(g)(3);

see also Pierce v. Staley, 587 N.W.2d 484, 486 (Iowa 1998). Finally, we note,

Myers does not claim his plea was involuntary or unintelligent. See Iowa R.

Crim. P. 2.8(2)(b). Therefore, we affirm the district court’s sentencing and

supplemental sentencing orders.