Opinion
No. 3-046 / 02-0706.
Filed March 12, 2003.
Appeal from the Iowa District Court for Lee (South) County, DAVID B. HENDRICKSON (guilty plea) and R. DAVID FAHEY, Jr., (sentencing), Judges.
Defendant appeals from the judgment and sentence imposed upon his convictions for two counts of delivery of less than five grams of methamphetamine, one count of possession of methamphetamine with intent to deliver, and one count of dominion and control over a firearm by a felon. AFFIRMED AND REMANDED WITH INSTRUCTIONS.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, and Michael Short, County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
William Thomas Davidson appeals from the judgment and sentence imposed by the district court following his pleas of guilty to four felony offenses. He claims his sentence was illegal and requests that we preserve an issue for postconviction relief. We affirm and remand with instructions.
On November 29, 2001, the State filed a nine count Trial Information charging Davidson with one class B felony, six class C felonies, one class D felony, and one serious misdemeanor. The Trial Information also alleged Davidson was a habitual offender as defined in Iowa Code section 902.8 (2001) with regard to the class C and D felonies charged.
Eight of the nine counts charged in the Trial Information involve drug related offenses. Several of the drug counts allege that one or more of the penalty enhancements provided for in section 124.401A (delivering or possessing with the intent to deliver within 1000 feet of certain property) and section 124.401(1)(e) (person in immediate possession of a firearm) are applicable.
Davidson appeared before the district court on March 11, 2002 to enter guilty pleas pursuant to a plea agreement. The terms of the plea agreement provided the defendant would plead guilty to four felony offenses, and that all four offenses would be subject to the habitual offender enhancement provided for in sections 902.8 and 902.9(3). In return, the State agreed to dismiss the five remaining charges. The State also agreed that it would not pursue any of the other enhancements applicable to the charges to which Davidson pled guilty.
During the plea proceedings which followed, Davidson pled guilty to separate charges of delivery of less than five grams of methamphetamine in violation of section 124.401(1)(c)(6) as charged in Counts I and II, possession of less than five grams of methamphetamine with intent to deliver in violation of section 124.401(1)(c)(6) as charged in Count IV, and dominion and control over a firearm by a felon in violation of section 724.26 as charged in Count VIII. Davidson also admitted he is a habitual offender as defined in section 902.8.
On April 15, 2002, Davidson appeared before the district court for sentencing. Pursuant to the plea agreement, the habitual offender enhancement provided for in section 902.8 was applied to the four offenses to which he pled guilty. The district court sentenced Davidson to four consecutive fifteen-year terms of incarceration. The sentencing court did not apply the penalty enhancements provided for under section 124.401A. Davidson appealed.
Davidson first claims he was illegally subjected to the penalty enhancement provided for in section 124.401A (drug sales by school) with regard to Counts I, II, and IV. Regarding Count VIII, he claims a one-third mandatory minimum was illegally applied to his sentence pursuant to section 124.413. We find no merit in either contention.
Our review of the sentencing hearing reveals that the sentence imposed by the district court is consistent with the parties' plea agreement. The district court properly imposed judgment on Davidson for violating section 124.401(1)(c)(6) in connection with Counts I, II, and IV and applied the habitual offender enhancement defined in section 902.8. Although it is clear the habitual offender enhancement defined in section 902.8 was applied at sentencing, the court's written judgment and sentence filed on April 15, 2002, after the hearing, does contain a clerical error. The written judgment and sentence makes reference to sections 124.401A and section 124.401(1)(e). Those sections were referred to in the original Trial Information, but were not applied by the court when defendant was sentenced.
An error is clerical in nature if it is not the product of judicial reasoning and determination. State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995) (citations omitted). Where there is a discrepancy between the oral pronouncement of sentence and the written judgment and commitment, the oral pronouncement of sentence controls. Id. at 528 (citations omitted). In the case at hand, the transcript of the sentencing hearing unambiguously demonstrates that the court sentenced Davidson in accordance with his plea agreement and did not apply enhancements provided for in section 124.401A or 124.401(1)(e). We therefore affirm the defendant's sentence and remand with instructions to enter a corrected written judgment entry.
Regarding Count VIII, we find nothing in the record which suggests the mandatory minimum of section 124.413 was applied to defendant's conviction for violating section 724.26. Further, during the defendant's guilty plea, the court advised him the one-third mandatory minimum applied to the drug offenses only. We reject this assignment of error.
The defendant asks us to preserve the issue of whether he is a habitual offender for postconviction relief. At his guilty plea proceedings, Davidson admitted he was a habitual offender. He acknowledged he was convicted of the felony offenses of arson in the second degree and burglary in the second degree in Iowa on December 16, 2001. He also admitted he had previously committed the offense of theft by deception, a third degree felony, in Adams County, Illinois. The court sentenced Davidson as a habitual offender based on his prior convictions in Iowa and Illinois.
Under section 902.8, each succeeding conviction must be subsequent in time to the previous convictions, both with respect to commission of the offense and to conviction. State v. Hollins, 310 N.W.2d 216, 217-18 (Iowa 1981). Therefore, the arson and burglary convictions amount to one felony for purposes of section 902.8.
Davidson did not challenge any of his prior convictions in district court and he does not contend his trial counsel was ineffective for failing to object to the use of the habitual offender statute at sentencing. On appeal, he simply states he intends to challenge his prior felony conviction in Illinois and believes it will be overturned or reduced to a misdemeanor on appeal. If his Illinois conviction is overturned, defendant contends he would no longer be a habitual offender because he would not have a second felony for enhancement purposes. See State v Hollins, 310 N.W.2d 216, 217-18 (Iowa 1981). Davidson has presented no support or authority for his claim that his Illinois conviction will be reversed. We find his speculation about the future success of an appeal he has not taken insufficient to reserve a claim for postconviction relief. See State v. Dunbar, 515 N.W.2d 12, 15 (Iowa 1994).
We affirm the defendant's judgment and sentence. We remand to the sentencing court for correction of the clerical error in the district court's written judgment and sentence order.