Opinion
No. 1-965 / 01-0587.
Filed February 6, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT D. WILSON, Judge.
Richard C. Steil appeals his convictions and sentences for robbery in the second degree and conspiracy to commit robbery. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Richard Bennett, Assistant Attorney General, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Richard C. Steil appeals his convictions and sentences for robbery in the second degree and conspiracy to commit robbery, in violation of Iowa Code sections 711.1, 711.3, 706.1 and 706.3 (2001). He claims his convictions and sentences are illegal.
Procedural facts . Steil was initially charged with robbery in the first degree, a class "B" felony carrying an indeterminate term of incarceration not to exceed twenty-five years. Pursuant to an agreement with the State, Steil pled guilty to an amended trial information charging him with robbery in the second degree and conspiracy to commit robbery, both class "C" felonies. The district court accepted Steil's pleas, entered judgment on both counts and imposed on each an indeterminate term of incarceration not to exceed ten years, the sentences to be served concurrently.
Scope of review . We review for corrections of error at law. State v Rodgers, 560 N.W.2d 585 (Iowa 1997).
Merits . Iowa Code section 706.4 states:
A conspiracy to commit a public offense is an offense separate and distinct from any public offense which might be committed pursuant to such conspiracy. A person may not be convicted and sentenced for both the conspiracy and for the public offense.
The State concedes both convictions cannot stand, but the State and Steil disagree on the appropriate remedy. Steil proposes we reverse both convictions and void his sentences, while the State asserts the appropriate remedy is vacation of the conspiracy conviction and sentence, and a remand to allow for the withdrawal or vacation of the guilty plea to second-degree robbery.
While the guilty pleas standing alone were not invalid, entering judgment on both was clearly erroneous. Iowa Code § 706.4. The trial court should have merged the convictions, entered judgment on the public offense of robbery in the second decree and sentenced accordingly. See State v. Waterbury, 307 N.W.2d 45, 52 (Iowa 1981) (stating when a defendant has been found guilty of both a substantive offense and the precursor conspiracy, merger applies and the defendant should be sentenced only on the substantive offense). We therefore affirm Steil's conviction and sentence for robbery in the second degree, but reverse his conviction for conspiracy to commit robbery and vacate the sentence imposed on that count.
AFFIRMED IN PART AND REVERSED IN PART.