Opinion
No. 3-686 / 02-1964
Filed October 15, 2003
Appeal from the Iowa District Court forMuscatine County, J. Hobart Darbyshire, Judge.
Eric Faler appeals the district court's denial of his request for postconviction relief on his sentence on two counts of delivery of a controlled substance. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Gary Allison, County Attorney, and Alan Ostergren, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Eric Faler appeals the district court's denial of his request for postconviction relief on his sentence on two counts of delivery of a controlled substance. He claims he received ineffective assistance due to counsel's failure to challenge the court's consideration of an improper factor during sentencing. Faler also relies on the alternative argument that an illegal sentence may be corrected at any time. We affirm.
Background Facts Proceedings
Faler was charged with two counts of delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver, all in violation of section 124.401(1)(b)(7) (2001). Faler agreed to plead guilty to the two counts of delivery of a controlled substance. These were each class B felonies, punishable by a term of imprisonment not to exceed twenty-five years. See Iowa Code § 902.9(2). The State agreed to dismiss the charge of possession of a controlled substance and a firearm enhancement.
The parties agreed to recommend that Faler receive consecutive sentences. The State also agreed Faler might be eligible for reduction of the mandatory minimum sentence pursuant to section 901.10(2) under each count. The written plea agreement stated Faler would receive the sentence "provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement."
At the sentencing hearing, the judge brought up the possibility that instead of sentencing Faler to two consecutive twenty-five year sentences with the mandatory minimum reduced, he might sentence Faler to concurrent sentences but not reduce the mandatory minimum. Faler's attorney responded Faler might have the best opportunity for an early release following the recommendation of the plea agreement. The judge stated, "I threw out what I threw out because I thought it would end up with him serving less time." The court continued:
I don't want Mr. Faler to have to spend 50 years or 25 years or 15 years in prison, assuming he follows the prison rules. I want him to be able to get out as soon as possible, given the severity of the crime, and that's what we're up against here, it's the severity of the crime that the legislature has indicated. But okay. If that's-if that's the fact of the matter, and I have no reason to dispute that, then what you're saying, in essence, is that by following the plea agreement I'm also going to accomplish my goal in this, that he serve a lesser amount of time, also. So what I'll do, Mr. Faler, is go ahead and adopt the plea agreement that you folks have entered into, and I will sentence you to two terms of not to exceed 25 years each. I'll order those be served consecutively, and I will invoke the provisions of Section 901.10(2) . . . .
The judge followed the plea agreement. Faler was sentenced to a term not to exceed twenty-five years on each count. The sentences were ordered to run consecutively, and the judge invoked the provisions of section 901.10(2) under each count. No direct appeal was filed.
Faler filed an application for postconviction relief, seeking reconsideration of his sentence. He claimed that due to the sentencing court's improper consideration of parole practices he was illegally sentenced to a total of fifty years in prison, instead of twenty-five years. The district court dismissed the application, finding Faler failed to preserve error on his claim because he had not directly appealed his sentence. Faler now appeals the district court's denial of his request for postconviction relief.
Standard of Review and Error Preservation
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a postconviction application must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied an applicant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
Generally, we will not address an issue which has not been preserved for our review. State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). Ordinarily, objections must be raised at the earliest opportunity after the grounds for the objection become apparent. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). However, a void, illegal or procedurally defective sentence may be corrected at any time. State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001).
Illegal Sentence
We first consider Faler's alternative argument that an illegal sentence can be corrected at any time. An illegal sentence is one not authorized by statute. Tindell, 629 N.W.2d at 359; Iowa R.Crim.P. 2.24(5)( a). It is clear the sentence entered in the instant case was not illegal. Iowa law does not extend the same protection to sentences that, because of procedural errors, are illegally imposed. Tindell, 629 N.W.2d at 359. Thus, this sentence cannot be corrected at any time, and Faler was obligated to object to the sentence in the district court. He did not do so and did not file a direct appeal. Thus, Faler failed to preserve error on this claim.
Ineffective Assistance of Counsel
Faler alleges counsel was ineffective for failing to challenge his sentence on the basis that the district court erred in employing the improper factor of parole consideration. Faler's claim must fail. He received the very same sentence as contained in the agreement. Thus, he received the benefit of the plea agreement, and counsel had no duty to object when the court cited impermissible factors. State v. Snyder, 336 N.W.2d 728, 729 (Iowa 1983). Any further argument that his counsel's advice concerning parole considerations was flawed must also fail. The record is very clear from trial counsel's affidavit that this information was available to Faler before the expiration of his time limit to take a direct appeal. He conceded at the postconviction relief hearing that any "failure to appeal occurred and was based upon his own instructions to his attorney . . . ." Indeed, Faler and his family directed his counsel not to appeal.
This case is unfortunate in that Faler's counsel and the district court were attempting to obtain for him the most lenient sentence. However, his failure to appeal and further failure to offer a legally sufficient excuse on the error preservation issue supports the district court's order granting dismissal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999).