Opinion
No. 04-0139.
March 16, 2005.
Appeal from the Iowa District Court for PolkCounty, Glenn E. Pille, Judge.
Baumann appeals from a portion of the judgment and sentence imposed after a jury found him guilty of three drug offenses. SENTENCE VACATED; REMANDED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Bob Diblasi, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Gottlieb William Baumann Jr., appeals from a portion of the judgment and sentence entered by the district court after a jury found him guilty of three drug offenses. We vacate one of his three sentences and remand for resentencing.
On September 11, 2003, the State charged Baumann with the following offenses: (1) possession of methamphetamine with intent to deliver, a class B felony enhanced as a second or subsequent offender, in violation of Iowa Code sections 124.401(1)(b)(7) and 124.411 (Count I); (2) failure to possess a tax stamp, a class D felony, in violation of Iowa Code sections 453B.3 and 453B.12 (Count II); and (3) possession of marijuana, a serious misdemeanor, in violation of Iowa Code section 124.401(5) (Count III) (2003). On December 8, 2003, a jury found Baumann guilty as charged, with the exception that the jury was not asked to consider the second or subsequent offender enhancement charged in Count I. Following the jury's verdict, Baumann stipulated to having previous convictions for manufacturing a controlled substance and possession of a precursor with intent to use it to manufacture methamphetamine.
The trial information charged Baumann under the 2001 Iowa Code. However, because the offenses occurred on August 23, 2003, Baumann should have been charged under the 2003 Iowa Code. Baumann does not challenge this discrepancy on appeal for two reasons: (1) he acknowledges that it was probably a typographical error and (2) there are no significant differences between the two versions of the Code that would prejudice him.
On January 27, 2004, the district court sentenced Baumann to twenty-five years in prison on Count I, five years in prison on Count II, and one year in prison on Count III, all to run concurrently with each other but consecutive to a separate parole revocation. Baumann appeals.
On appeal, Baumann does not challenge the sentences imposed by the district court for Counts I and II. His only contention is that the court improperly sentenced him to one year in jail for the offense of possession of marijuana as charged in Count III. Baumann asks that we vacate his sentence as to Count III and remand to the district court for resentencing.
A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure. State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998). Where the trial court has acted in contravention of a statute, our review is for errors at law. State v. Morris, 417 N.W.2d 688, 689 (Iowa 1997). Procedurally defective, illegal or void sentences may be corrected at any time. State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994).
Baumann did not object to the sentence imposed for Count III before the district court; however, this does not prevent him from raising an alleged sentencing defect on appeal.
Baumann claims that his sentence as to Count III is illegal because the district court was without authority to sentence him to a period of incarceration longer than six months under Iowa Code section 124.401(5). The State argues the sentence imposed for Count III does not contravene the controlling statute.
Count III of the State's trial information charged Baumann with possession of a controlled substance (marijuana) in violation of section 124.401(5). The trial information describes the offense as a serious misdemeanor.
The first paragraph of section 124.401(5) provides as follows:
It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense. A person who commits a violation of this subsection and who has previously been convicted of violating this chapter or chapter 124A, 124B, or 453B is guilty of an aggravated misdemeanor. A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter or chapter 124A, 124B, or 453B is guilty of a class "D" felony.
The second unnumbered paragraph of section 124.401(5) reads as follows:
If the controlled substance is marijuana, the punishment shall be by imprisonment in the county jail for not more than six months or by a fine of not more than one thousand dollars, or by both such fine and imprisonment for a first offense. If the controlled substance is marijuana and the person has been previously convicted of a violation of this subsection in which the controlled substance was marijuana, the punishment shall be as provided in section 903.1, subsection 1, paragraph "b". If the controlled substance is marijuana and the person has been previously convicted two or more times of a violation of this subsection in which the controlled substance was marijuana, the person is guilty of an aggravated misdemeanor.
Our supreme court interpreted section 124.401(5) in State v. Cortez, 617 N.W.2d 1, 3 (Iowa 2000). The court concluded that section 124.401(5) is only intended to grant leniency to those charged exclusively with marijuana related offenses. The court stated that "[o]nce a defendant is convicted of a single offense involving other illegal substances . . . all crimes committed prior or subsequent thereto could be used to enhance the offender's sentence under the stricter, felony track." Id. The court's interpretation of 124.401(5) was based on the fact that "it would be absurd to treat a defendant as a first time marijuana offender, when that person is guilty of antecedent convictions for possession of hard drugs." Id.
Baumann concedes the State could have sought to enhance his sentence on Count III to an aggravated misdemeanor or class D felony based on his prior convictions; however, he argues that because the State failed to do so the district court erred in sentencing him to a term of incarceration which exceeded six months. We agree. See State v. Trader, 661 N.W.2d 154, 156 (Iowa 2003) (holding that if the State wishes to take advantage of an enhancement provision, it must allege the prior convictions in the trial information and then establish them at trial or obtain a guilty plea to the enhanced charge).
The State argues that "the defendant is charged as a subsequent offender although not explicitly on this count." This fact only makes Baumann's argument stronger. In Count I, the State specifically alleged Baumann had prior offenses in order to subject him to an enhanced sentence for Count I. The record reveals the State made no allegation that Baumann was subject to an enhanced sentence for Count III either in the trial information or at the time that Baumann was sentenced.
Because we find that the district court erred in sentencing Baumann to a term of incarceration which exceeded six months for Count III, we vacate Baumann's sentence on that count and remand to the district court for resentencing on that count only.