Opinion
No. 6-123 / 04-1474
Filed March 29, 2006
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, Judge.
Benjamin Thomas Gordon appeals from his conviction and sentence for the offense of second-degree criminal mischief as a habitual offender, pursuant to Iowa Code section 716.4 (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender and Stephan Japuntich, Assistant State Appellate Defender, for appellant.
Benjamin T. Gordon, Fort Madison, pro se.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Steve Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Benjamin Thomas Gordon appeals from his conviction and sentence for the offense of second-degree criminal mischief as a habitual offender, pursuant to Iowa Code section 716.4 (2003). He contends the district court imposed an illegal sentence. We review Gordon's claim for the correction of errors at law. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). 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 such as the trial court's consideration of impermissible factors. Id.
A challenge to an illegal sentence may be made for the first time on appeal. State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003). Gordon contends he was illegally sentenced because he was sentenced as a habitual offender based on two prior felonies that occurred on the same date, in violation of State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974). However, Gordon pled guilty to being a habitual offender and the district court sentenced him in accordance with the law as a habitual offender.
The exclusion of illegal sentences from the principles of error preservation is limited to those cases in which a trial court has stepped outside the codified bounds of allowable sentencing. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). In other words, the sentence is illegal because it is beyond the power of the court to impose. Id. That was not the case here, as Gordon admitted to being an habitual offender, and therefore the rules of error preservation apply. See State v. Hochmuth, 585 N.W.2d 234, 237 (Iowa 1998). Because Gordon indisputably did not preserve error as required, we will not consider his claim on appeal. Id. AFFIRMED.