IN THE COURT OF APPEALS OF IOWA
No. 14-0872 Filed January 27, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
PERRY BERNARDO BENDER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, William C.
Ostlund, Judge.
The defendant appeals from the district court’s denial of his motions to
correct an illegal sentence. AFFIRMED.
Shawn Smith of Shawn Smith, Attorney at Law, P.L.L.C., Ames, for
appellant.
Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ. 2
DANILSON, Chief Judge.
Perry Bender appeals from the district court’s denial of his motions to
correct an illegal sentence imposed for two 2007 convictions. In 2007, Bender
was convicted of possession of a firearm as a felon, as an habitual offender,1 and
in a second case he was convicted of burglary in the second degree, as an
habitual offender, and stalking in violation of a no-contact order, as an habitual
offender.2 Bender appealed in both cases, and his appeals were consolidated.
Bender maintains the district court erred in denying his motions because the
imposition of the habitual offender enhancements was illegal and should have
been corrected. He maintains the enhancements are only applicable when the
person in question has been twice convicted and sentenced for felonies. He
argues that because his 2001 sentence was illegal and void, he had not been
twice sentenced in 2007 when the enhancements were imposed, and it could not
be properly applied to him.
The habitual offender enhancement of Iowa Code section 902.8 (2005) is
triggered by convictions alone. Notwithstanding any issues with sentencing,
Bender has not shown that his previous convictions were in error. Because
Bender’s 1996 conviction and 2001 conviction preceded his 2007 convictions,
the imposition of the habitual offender enhancements was not in error, and we
affirm the district court’s denial of Bender’s motions to correct an illegal sentence.
1 Case no. FECR331222 2 Case no. FECR333021 3
I. Backgrounds Facts and Proceedings.
Following a trial by jury, on May 2, 2007, the district court entered
judgment against Bender for possession of a firearm as a felon, as an habitual
offender (case no. FECR331222). Also following a trial by jury, on May 7, 2007,
the district court entered judgment against Bender for burglary in the second
degree, as an habitual offender, and stalking in violation of a no-contact order, as
an habitual offender (case no. FECR333021). Regarding the habitual offender
enhancements, the State relied on a 1996 conviction for burglary in the third
degree and a 2001 conviction for willful injury.
On March 12, 2013, Bender filed a motion to correct an illegal sentence in
case no. FECR331222. He maintained that the 2001 willful injury charge had not
reached “valid final judgment” at the time of the 2007 sentencing and thus was
not a predicate felony for the purpose of the sentencing enhancements. One
week later, Bender filed a similar motion in case no. FECR333021.
On May 30, 2013, the court of appeals filed an opinion finding that Bender
had received an illegal sentence for his 2001 conviction for willful injury. See
State v. Bender, No. 12–0415, 2013 WL 2368826, at *3 (Iowa Ct. App. May 30,
2013). The court vacated the district court’s initial sentencing order and
remanded for resentencing. The court also stated, “We also reject Bender’s pro
se argument that due to a violation of Iowa Code section 708.4(2) his conviction
should be vacated. We agree with the State’s argument that the time for appeal
of that conviction has passed and affirm the conviction.” Neither the State nor
Bender sought further review, and procedendo issued on July 10, 2013. 4
The district court heard argument on Bender’s motions to correct the
illegal habitual offender sentences in FECR331222 and FECR333021 on
February 24, 2014. The court denied both motions in a written ruling, filed
April 23, 2014, and Bender filed a consolidated appeal.
II. Standard of Review.
We review challenges to the legality of a sentence for correction of errors
at law. State v. Chadwick, 586 N.W.2d 391, 392 (Iowa Ct. App. 1998).
III. Discussion.
Bender maintains that the district court’s imposition of the habitual
offender enhancements was illegal. He maintains the enhancements are only
applicable when the person in question has been twice convicted and sentenced
for felonies. He argues that because his 2001 sentence was illegal and void, he
had not been twice convicted and sentenced in 2007 when the enhancements
were imposed, and it could not be properly applied to him.
Bender’s sentence was enhanced pursuant to Iowa Code section 902.8,
which provides:
An habitual offender is any person convicted of a class “C” or a class “D” felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, by the law under which the person is convicted, it is so classified at the time of the person’s conviction. A person sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of three years.
Bender maintains that “conviction”—as used in section 902.8—is not meant in
the colloquial sense, but rather in a “restricted or technical legal sense.” In State
v. Hanna, 179 N.W.2d 503, 507–08 (Iowa 1970), our supreme court stated: 5
The word ‘conviction’ is of equivocal meaning, and its use in a statute presents a question of legislative intent. In the restricted or technical legal sense in which it is sometimes used, the word ‘conviction’ includes the status of being guilty of, 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. Stated otherwise technically the word means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to an ascertainment of his guilt. In its general and popular sense and frequently is its ordinary legal sense, the word ‘conviction’ is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or a plea of guilty.
Moreover, the court has stated that when considering the word “conviction” in a
statute used to enhance punishment, the word is construed to have a “relatively
narrow and technical meaning.” Schilling v. Iowa Dep’t of Transp., 646 N.W.2d
69, 71 (Iowa 2002). When used in its technical legal sense, “it requires a formal
adjudication by the court and the formal entry of judgment of conviction.”
Daughenbaugh v. State, 805 N.W.2d 591, 597 (Iowa 2011). However, we are
not persuaded by these arguments because the meaning of conviction in the
habitual offender statute is not equivocal. Our supreme court interpreted the
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IN THE COURT OF APPEALS OF IOWA
No. 14-0872 Filed January 27, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
PERRY BERNARDO BENDER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, William C.
Ostlund, Judge.
The defendant appeals from the district court’s denial of his motions to
correct an illegal sentence. AFFIRMED.
Shawn Smith of Shawn Smith, Attorney at Law, P.L.L.C., Ames, for
appellant.
Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ. 2
DANILSON, Chief Judge.
Perry Bender appeals from the district court’s denial of his motions to
correct an illegal sentence imposed for two 2007 convictions. In 2007, Bender
was convicted of possession of a firearm as a felon, as an habitual offender,1 and
in a second case he was convicted of burglary in the second degree, as an
habitual offender, and stalking in violation of a no-contact order, as an habitual
offender.2 Bender appealed in both cases, and his appeals were consolidated.
Bender maintains the district court erred in denying his motions because the
imposition of the habitual offender enhancements was illegal and should have
been corrected. He maintains the enhancements are only applicable when the
person in question has been twice convicted and sentenced for felonies. He
argues that because his 2001 sentence was illegal and void, he had not been
twice sentenced in 2007 when the enhancements were imposed, and it could not
be properly applied to him.
The habitual offender enhancement of Iowa Code section 902.8 (2005) is
triggered by convictions alone. Notwithstanding any issues with sentencing,
Bender has not shown that his previous convictions were in error. Because
Bender’s 1996 conviction and 2001 conviction preceded his 2007 convictions,
the imposition of the habitual offender enhancements was not in error, and we
affirm the district court’s denial of Bender’s motions to correct an illegal sentence.
1 Case no. FECR331222 2 Case no. FECR333021 3
I. Backgrounds Facts and Proceedings.
Following a trial by jury, on May 2, 2007, the district court entered
judgment against Bender for possession of a firearm as a felon, as an habitual
offender (case no. FECR331222). Also following a trial by jury, on May 7, 2007,
the district court entered judgment against Bender for burglary in the second
degree, as an habitual offender, and stalking in violation of a no-contact order, as
an habitual offender (case no. FECR333021). Regarding the habitual offender
enhancements, the State relied on a 1996 conviction for burglary in the third
degree and a 2001 conviction for willful injury.
On March 12, 2013, Bender filed a motion to correct an illegal sentence in
case no. FECR331222. He maintained that the 2001 willful injury charge had not
reached “valid final judgment” at the time of the 2007 sentencing and thus was
not a predicate felony for the purpose of the sentencing enhancements. One
week later, Bender filed a similar motion in case no. FECR333021.
On May 30, 2013, the court of appeals filed an opinion finding that Bender
had received an illegal sentence for his 2001 conviction for willful injury. See
State v. Bender, No. 12–0415, 2013 WL 2368826, at *3 (Iowa Ct. App. May 30,
2013). The court vacated the district court’s initial sentencing order and
remanded for resentencing. The court also stated, “We also reject Bender’s pro
se argument that due to a violation of Iowa Code section 708.4(2) his conviction
should be vacated. We agree with the State’s argument that the time for appeal
of that conviction has passed and affirm the conviction.” Neither the State nor
Bender sought further review, and procedendo issued on July 10, 2013. 4
The district court heard argument on Bender’s motions to correct the
illegal habitual offender sentences in FECR331222 and FECR333021 on
February 24, 2014. The court denied both motions in a written ruling, filed
April 23, 2014, and Bender filed a consolidated appeal.
II. Standard of Review.
We review challenges to the legality of a sentence for correction of errors
at law. State v. Chadwick, 586 N.W.2d 391, 392 (Iowa Ct. App. 1998).
III. Discussion.
Bender maintains that the district court’s imposition of the habitual
offender enhancements was illegal. He maintains the enhancements are only
applicable when the person in question has been twice convicted and sentenced
for felonies. He argues that because his 2001 sentence was illegal and void, he
had not been twice convicted and sentenced in 2007 when the enhancements
were imposed, and it could not be properly applied to him.
Bender’s sentence was enhanced pursuant to Iowa Code section 902.8,
which provides:
An habitual offender is any person convicted of a class “C” or a class “D” felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, by the law under which the person is convicted, it is so classified at the time of the person’s conviction. A person sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of three years.
Bender maintains that “conviction”—as used in section 902.8—is not meant in
the colloquial sense, but rather in a “restricted or technical legal sense.” In State
v. Hanna, 179 N.W.2d 503, 507–08 (Iowa 1970), our supreme court stated: 5
The word ‘conviction’ is of equivocal meaning, and its use in a statute presents a question of legislative intent. In the restricted or technical legal sense in which it is sometimes used, the word ‘conviction’ includes the status of being guilty of, 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. Stated otherwise technically the word means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to an ascertainment of his guilt. In its general and popular sense and frequently is its ordinary legal sense, the word ‘conviction’ is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or a plea of guilty.
Moreover, the court has stated that when considering the word “conviction” in a
statute used to enhance punishment, the word is construed to have a “relatively
narrow and technical meaning.” Schilling v. Iowa Dep’t of Transp., 646 N.W.2d
69, 71 (Iowa 2002). When used in its technical legal sense, “it requires a formal
adjudication by the court and the formal entry of judgment of conviction.”
Daughenbaugh v. State, 805 N.W.2d 591, 597 (Iowa 2011). However, we are
not persuaded by these arguments because the meaning of conviction in the
habitual offender statute is not equivocal. Our supreme court interpreted the
meaning of “conviction” within the habitual offender enhancement in State v.
Hollins, 310 N.W.2d 216, 216 (Iowa 1981).
In Hollins, the court was tasked with determining what was necessary “to
invoke the provisions of that statute and impose sentence as such upon an
habitual offender.” 310 N.W.2d at 216. The court found, “Sentences and
commitments for prior offenses need not be shown in order to impose the
enhanced punishment for an habitual offender under the new statute,” and “the
trial court correctly held that the provisions of the present recidivism statute are 6
triggered by convictions alone and not by any resulting prior sentences or
commitments to prison.” Id. at 216 (emphasis added).
We acknowledge two cases decided after Hollins and relied upon by
Bender, State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005), and Hajek v. Iowa
State Bd. of Parole, 414 N.W.2d 122, 123 (Iowa 1987). Freeman referenced
Hollins and recited:
Despite the change in language in the statute, we reaffirmed our holding in Conley to follow the general rule that 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.
Freeman, 705 N.W.2d at 289 (citing Hollins, 310 N.W.2d at 217-18).
Additionally, in Hajek, the court cited Hollins and stated, “The general rule is that
criminal recidivism statutes which enhance punishment apply only when the
second offense occurs after the imposition of judgment and sentence on the first
offense.” Hajek, 414 N.W.2d at 123. However, these recitations simply
reaffirmed the general rule. It did not modify the exception to the general rule
applied in Hollins that the habitual offender statute, Iowa Code section 902.8,
only requires a conviction—and not a conviction and sentence—to be completed
prior to the instant offense. We also note that Freeman was a case involving a
sentencing enhancement under Iowa Code section 124.401(5) and Hajek was a
case involving Iowa Code section 906.5, as opposed to the habitual offender
enhancement mentioned in Hollins and set forth in Iowa Code section 902.8.
Convictions alone trigger the habitual offender enhancement of Iowa Code
section 902.8, and Bender has not shown that his convictions were in error. “An
appeal or subsequent challenge to a conviction and sentence does not render 7
the judgment of conviction unenforceable during the pendency of the appeal.”
Kurtz v. State, 854 N.W.2d 474, 479 (Iowa Ct. App. 2014); see also Iowa Code
§ 811.5 (noting that absent bail, a defendant must begin serving the applicable
sentence). A challenge to the legality of a sentence—even a challenge of
constitutional magnitude—does not affect the enforceability of the underlying
conviction. See, e.g., Kurtz, 854 N.W.2d at 479; State v. Hoeck, 843 N.W.2d 67,
72 (Iowa 2014). Rather, the challenge simply affects the enforceability of the
particular sentence, and in such a case, the defendant is entitled to be
resentenced appropriately under existing law. Kurtz, 854 N.W.2d at 479.
Moreover, here, our court explicitly rejected Bender’s contention that his 2001
conviction should be vacated. See Bender, 2013 WL 2368826, at *3 (“We also
reject Bender’s pro se argument that due to a violation of Iowa Code section
708.4(2) his conviction should be vacated. We agree with the State’s argument
that the time for appeal of that conviction has passed and affirm the conviction.”).
Accordingly, the illegality of Bender’s sentence for the 2001 conviction did
not affect the conviction itself. Because Bender’s 1996 conviction and 2001
conviction preceded his 2007 convictions, the habitual offender enhancements
were not in error. We affirm the district court’s denial of Bender’s motions to
correct an illegal sentence.
AFFIRMED.