IN THE COURT OF APPEALS OF IOWA
No. 13-1689 Filed December 24, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
THOMAS HENDRICKSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison
(plea and sentencing), Christopher L. McDonald (probation revocation), and
Douglas F. Staskal (motion to correct illegal sentence), Judges.
A defendant appeals from the district court ruling denying his pro se
motion to correct an illegal sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, John P. Sarcone, County Attorney, and Nan M. Horvat, Assistant
County Attorney, for appellee.
Considered by Doyle, P.J., Tabor, J., and Goodhue, S.J.* McDonald, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
GOODHUE, S.J.
Thomas Hendrickson appeals from the district court ruling denying his pro
se motion to correct an illegal sentence.
I. Background Facts and Proceedings
On July 28, 2011, a trial information was filed charging Hendrickson with
sexual abuse in the third degree by engaging in sex with a fifteen-year-old
female. Hendrickson was twenty-seven years old at the time and not married to
the female. He entered a plea of guilty on October 7, 2011. He was given a ten-
year sentence, but the sentence was suspended and he was placed on probation
for five years. A no-contact order was entered prohibiting him from having
contact with any person under eighteen years of age. He was also sentenced to
lifetime supervision by the department of corrections as provided by Iowa Code
section 903B.1 (2011).
Hendrickson violated the terms and conditions of his probation agreement,
and on April 9, 2012, his probation was continued but made subject to placement
in the Fort Des Moines Residential Correctional Facility. Another report of
violation was filed, and on February 4, 2013, the district court revoked his
probation and imposed the original sentence.
On August 23, 2013, Hendrickson filed a pro se motion for correction of an
illegal sentence, challenging the section 903B.1 lifetime special sentence as an
illegal sentence in violation of the state and federal constitutions’ prohibition on
cruel and unusual punishment, as well as the constitutional prohibitions against
double jeopardy. On October 14, 2013, an unreported hearing was held on the 3
motion. Hendrickson participated telephonically and without counsel. The
district court overruled the motion.
Hendrickson has appealed. He made no request for court-appointed
counsel until sometime after the appeal had been filed. Counsel was appointed
on February 18, 2014. On appeal, Hendrickson contends that absent a waiver,
the court erred in failing to appoint counsel prior to the October 14, 2013 hearing.
He further contends the lifetime special sentence is grossly disproportionate to
the crime committed and violates the cruel and unusual punishment prohibitions
of the United States and Iowa Constitutions, and that the no-contact order
prohibiting him from having contact with persons under eighteen years of age is
an illegal order.
II. Error Preservation
To the extent that Hendrickson is attacking the legality of his sentence, he
is not required to preserve error. See State v. Thomas, 520 N.W.2d 311, 313
(Iowa Ct. App. 1994). The State points out that Hendrickson never requested
counsel, therefore no ruling was made and it necessarily follows that error has
not been preserved as to the right to counsel issue. See Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012) (holding issues must ordinarily be decided by the
district court before being decided on appeal). The State’s argument begs the
underlying question of whether Hendrickson had a constitutional right to counsel.
If he had a constitutional right to counsel, the right to counsel existed until it was
expressly waived. State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997). To waive
one’s constitutional right to counsel and represent himself or herself, a party must
knowingly, intelligently, voluntarily, and unequivocally waive that right and 4
affirmatively set out his intention to represent himself. Id. If the constitutional
right existed here, there is no record of the required waiver.
III. Standard of Review
A claim implicating a constitutional right to counsel is reviewed de novo.
State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010). Constitutional challenges to
an allegedly illegal sentence are reviewed de novo. State v. Ragland, 836
N.W.2d 107, 113 (Iowa 2013). If the right to counsel is statutory as opposed to
constitutional, our review is for errors of law. Id.
IV. Discussion
Hendrickson contends that a motion to correct a sentence is a critical
stage of the trial proceeding and therefore he has a constitutional right to
counsel. In considering the constitutional right to counsel, our supreme court has
noted that “the right to appointed counsel for a convicted criminal extends only to
the first appeal of right.” Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988).
The constitutional right to counsel does not apply to collateral issues that long
ago became final. Id. Hendrickson did not file his motion to correct his sentence
until after the time to file an appeal had lapsed. Hendrickson’s requested relief
was made under Iowa Rule of Criminal Procedure 22.4(1). In Fuhrmann, the
requested relief was made using our postconviction-relief procedure, id. at 721-
22, but there is no reason to differentiate the application of one’s constitutional
right to counsel based on the procedure used to request the relief sought.
Hendrickson contends that the right to counsel as expressed in the Iowa
Constitution should be interpreted more expansively than the right to counsel
under the United States Constitution. The Fuhrmann court did not do so. Id. at 5
722. Further, Hendrickson does little more than cite the language of the Iowa
Constitution. We do not interpret a provision of our state constitution differently
than the United States Constitution on a mere citation of the applicable state
constitution provision. State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel,
J., dissenting). Furthermore, making an argument in a reply brief for the first time
is not timely. See Sun Valley Iowa Lakes Ass’n v. Anderson, 551 N.W.2d 621,
642 (Iowa 1996).
Even if Hendrickson did have a statutory right to counsel the statutory right
requires either the court to exercise its discretionary right to appoint counsel on
its own motion, or the defendant or someone on his behalf to make such a
request.
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IN THE COURT OF APPEALS OF IOWA
No. 13-1689 Filed December 24, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
THOMAS HENDRICKSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison
(plea and sentencing), Christopher L. McDonald (probation revocation), and
Douglas F. Staskal (motion to correct illegal sentence), Judges.
A defendant appeals from the district court ruling denying his pro se
motion to correct an illegal sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, John P. Sarcone, County Attorney, and Nan M. Horvat, Assistant
County Attorney, for appellee.
Considered by Doyle, P.J., Tabor, J., and Goodhue, S.J.* McDonald, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
GOODHUE, S.J.
Thomas Hendrickson appeals from the district court ruling denying his pro
se motion to correct an illegal sentence.
I. Background Facts and Proceedings
On July 28, 2011, a trial information was filed charging Hendrickson with
sexual abuse in the third degree by engaging in sex with a fifteen-year-old
female. Hendrickson was twenty-seven years old at the time and not married to
the female. He entered a plea of guilty on October 7, 2011. He was given a ten-
year sentence, but the sentence was suspended and he was placed on probation
for five years. A no-contact order was entered prohibiting him from having
contact with any person under eighteen years of age. He was also sentenced to
lifetime supervision by the department of corrections as provided by Iowa Code
section 903B.1 (2011).
Hendrickson violated the terms and conditions of his probation agreement,
and on April 9, 2012, his probation was continued but made subject to placement
in the Fort Des Moines Residential Correctional Facility. Another report of
violation was filed, and on February 4, 2013, the district court revoked his
probation and imposed the original sentence.
On August 23, 2013, Hendrickson filed a pro se motion for correction of an
illegal sentence, challenging the section 903B.1 lifetime special sentence as an
illegal sentence in violation of the state and federal constitutions’ prohibition on
cruel and unusual punishment, as well as the constitutional prohibitions against
double jeopardy. On October 14, 2013, an unreported hearing was held on the 3
motion. Hendrickson participated telephonically and without counsel. The
district court overruled the motion.
Hendrickson has appealed. He made no request for court-appointed
counsel until sometime after the appeal had been filed. Counsel was appointed
on February 18, 2014. On appeal, Hendrickson contends that absent a waiver,
the court erred in failing to appoint counsel prior to the October 14, 2013 hearing.
He further contends the lifetime special sentence is grossly disproportionate to
the crime committed and violates the cruel and unusual punishment prohibitions
of the United States and Iowa Constitutions, and that the no-contact order
prohibiting him from having contact with persons under eighteen years of age is
an illegal order.
II. Error Preservation
To the extent that Hendrickson is attacking the legality of his sentence, he
is not required to preserve error. See State v. Thomas, 520 N.W.2d 311, 313
(Iowa Ct. App. 1994). The State points out that Hendrickson never requested
counsel, therefore no ruling was made and it necessarily follows that error has
not been preserved as to the right to counsel issue. See Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012) (holding issues must ordinarily be decided by the
district court before being decided on appeal). The State’s argument begs the
underlying question of whether Hendrickson had a constitutional right to counsel.
If he had a constitutional right to counsel, the right to counsel existed until it was
expressly waived. State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997). To waive
one’s constitutional right to counsel and represent himself or herself, a party must
knowingly, intelligently, voluntarily, and unequivocally waive that right and 4
affirmatively set out his intention to represent himself. Id. If the constitutional
right existed here, there is no record of the required waiver.
III. Standard of Review
A claim implicating a constitutional right to counsel is reviewed de novo.
State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010). Constitutional challenges to
an allegedly illegal sentence are reviewed de novo. State v. Ragland, 836
N.W.2d 107, 113 (Iowa 2013). If the right to counsel is statutory as opposed to
constitutional, our review is for errors of law. Id.
IV. Discussion
Hendrickson contends that a motion to correct a sentence is a critical
stage of the trial proceeding and therefore he has a constitutional right to
counsel. In considering the constitutional right to counsel, our supreme court has
noted that “the right to appointed counsel for a convicted criminal extends only to
the first appeal of right.” Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988).
The constitutional right to counsel does not apply to collateral issues that long
ago became final. Id. Hendrickson did not file his motion to correct his sentence
until after the time to file an appeal had lapsed. Hendrickson’s requested relief
was made under Iowa Rule of Criminal Procedure 22.4(1). In Fuhrmann, the
requested relief was made using our postconviction-relief procedure, id. at 721-
22, but there is no reason to differentiate the application of one’s constitutional
right to counsel based on the procedure used to request the relief sought.
Hendrickson contends that the right to counsel as expressed in the Iowa
Constitution should be interpreted more expansively than the right to counsel
under the United States Constitution. The Fuhrmann court did not do so. Id. at 5
722. Further, Hendrickson does little more than cite the language of the Iowa
Constitution. We do not interpret a provision of our state constitution differently
than the United States Constitution on a mere citation of the applicable state
constitution provision. State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel,
J., dissenting). Furthermore, making an argument in a reply brief for the first time
is not timely. See Sun Valley Iowa Lakes Ass’n v. Anderson, 551 N.W.2d 621,
642 (Iowa 1996).
Even if Hendrickson did have a statutory right to counsel the statutory right
requires either the court to exercise its discretionary right to appoint counsel on
its own motion, or the defendant or someone on his behalf to make such a
request. Iowa Code § 815.10 (2011). The need for some action to be taken
before the appointment of counsel is required is in contrast to the constitutional
right, when the right to counsel attaches immediately and without request. See
Hannon v. State, 732 N.W.2d 45, 52 (Iowa 2007). As the trial court noted,
Hendrickson made no request for counsel and the court did not appoint counsel
on its own motion. The statutory right to counsel was not invoked until the
appellate level had been reached.
Hendrickson relies on State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996),
for his contention that a motion to correct a sentence is a critical stage of the
criminal proceeding and therefore the right to counsel continued until his motion
was heard. Alspach is a restitution case and can be differentiated from the case
at hand. 554 N.W.2d at 883. The restitution sentencing provision of the order
had been left open in Alspach until the amount of restitution had been
determined. Id. at 882-883. In Hendrickson’s case, the application of section 6
903B.1 was immediately included in the sentencing order. Furthermore, in the
Alspach case a request for counsel was made, which invoked the statutory right.
Id. at 882. Again, Hendrickson made no such request until the appellate level
was reached.
Hendrickson contends that the lifetime special sentence under section
903B.1 is grossly disproportionate to the crime committed and is therefore cruel
and unusual punishment. In a matter substantially similar to Hendrickson’s
situation, it was determined that the issue of whether the lifetime parole
provisions of Iowa Code section 903B.1 constitute cruel and unusual punishment
was not ripe for adjudication. State v. Tripp, 776 N.W.2d 855, 859 (Iowa 2010).
Hendrickson, in effect, admits he cannot differentiate his situation from the
situation existed in Tripp by urging that the Tripp case should be overruled. We
decline the invitation to do so and defer to our supreme court when such
requests are made.
Finally, Hendrickson contends the order entered prohibiting his contact
with any persons under the age of eighteen is an unauthorized, illegal sentence.
Hendrickson states he cannot tell if the injunction entered was a condition of
probation or a part of the sentencing order. The State concedes it was a
condition of the probation. The parties agree that if it was a condition of
probation, then when Hendrickson’s probation was revoked the no-contact order
was no longer effective. An appeal is ordinarily considered moot when the issue
it presents becomes nonexistent and its judgment is rendered with an unknown
practical effect. In re M.T., 625 N.W.2d 702, 704 (Iowa 2001). We generally 7
refrain from reviewing moot issues. State v. Hernandez-Lopez, 639 N.W.2d 226,
234 (Iowa 2002). We refrain from doing so in this case.
AFFIRMED.