Summary
affirming sentence tripled under Iowa Code section 124.411 based on a prior felony drug conviction in Nebraska for possession of a controlled substance (methamphetamine)
Summary of this case from Brown v. Iowa Dist. Court for Polk Cnty.Opinion
No. 5-170 / 04-1004
Filed April 13, 2005
Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.
Charley Cornish appeals his sentence for possession of marijuana with intent to deliver and other drug-related offenses. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston and Greta Truman, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Brigit Barnes, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Charley Keith Cornish pled guilty to possession of marijuana with intent to deliver, as well as other drug-related crimes. Iowa Code §§ 124.401(1)(d), 453B.12 (2003). His sentence was tripled under Iowa Code section 124.411, based on a prior felony drug conviction in Nebraska for possession of a controlled substance (methamphetamine). Nebraska Revised Statute § 28-416(3) (Cum. Supp. 1992). Cornish appeals the sentence, contending this enhancement was illegal.
That section states:
A person knowingly or intentionally possessing a controlled substance, except marijuana, unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by the act, shall be guilty of a Class IV felony.
Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 1992).
The State counters that (1) error was not preserved because the "sentence was not illegal" and (2) error was waived because Cornish did not "object to the sentence during his sentencing hearing." We are not persuaded by the State's arguments. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001) (indicating court must address merits of appeal to determine whether sentence was illegal); State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000) ("Neither party may rely on a plea agreement to uphold an illegal sentence."); State v. Cortez, 617 N.W.2d 1, 3 (Iowa 2000) (stating illegal sentence is subject to correction at anytime).
Turning to the merits, Iowa Code section 124.411 reads as follows:
1. Any person convicted of a second or subsequent offense under this chapter, may be punished by imprisonment for a period not to exceed three times the term otherwise authorized, or fined not more than three times the amount otherwise authorized, or punished by both such imprisonment and fine.
2. For purposes of this section, an offense is considered a second or subsequent offense, if, prior to the person's having been convicted of the offense, the offender has ever been convicted under this chapter or under any state or federal statute relating to narcotic drugs or cocaine, marijuana, depressant, stimulant, or hallucinogenic drugs.
3. This section does not apply to offenses under section 124.401, subsection 5.
Iowa Code section 124.411 authorizes tripling of a sentence based on a second or subsequent drug offense. Iowa Code § 124.411(1). By its terms, this provision "does not apply to offenses under section 124.401, subsection 5." Iowa Code § 124.411(3) (emphasis added). Cornish argues the term "offense" should be read to include prior as well as current offenses. In his view, the Nebraska conviction is the "equivalent" of an offense under Iowa Code section 124.401(5). Therefore, Cornish asserts, the Nebraska conviction can not serve as a basis for enhancement.
Cornish's argument ignores the plain language of Iowa Code section 124.411(2) which authorizes the enhancement if, "prior to the person's having been convicted of the offense, the offender has ever been convicted under this chapter or under any state or federal statute relating to narcotic drugs or cocaine, marijuana, depressant, stimulant, or hallucinogenic drugs." (Emphasis added). Based on this language, Cornish's prior Nebraska conviction is grounds for tripling his sentence. See State v. Owens, 635 N.W.2d 478, 486 (Iowa 2001) (stating "[t]he intended breadth of [Iowa Code section 124.411(2)] is thus clear. A prior conviction under any state or federal statute having a relationship with or connection to cocaine or other narcotic drugs is considered a second or subsequent offense for the purpose of enhancement in accordance with section 124.411(1)."). As section 124.411(2) is dispositive, we find it unnecessary to address Cornish's contentions concerning Iowa Code section 124.411(3).