Opinion
No. 5-935 / 04-1394
Filed March 1, 2006
Appeal from the Iowa District Court for Hamilton County, Ronald H. Schechtman, Judge.
Steven Bruce Rowley appeals the denial of his motion to correct an illegal sentence. REMANDED.
Daniel Gonnerman of Gonnerman, Owen Stonehocker, L.L.P., Ames, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Patrick B. Chambers, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Steven Bruce Rowley appeals from the August 4, 2004 denial of his motion to correct an illegal sentence.
I. Background Facts and Proceedings.
On November 12, 1996, Rowley entered Alford guilty pleas to one count of second-degree murder and one count of willful injury. On December 23, 1996, the district court sentenced Rowley to an indeterminate term not to exceed fifty years on the second-degree murder count, and an indeterminate term not to exceed ten years on the willful injury count. The court ordered that Rowley's sentences be served consecutively. Rowley's direct appeal of his convictions was dismissed.
Rowley filed two subsequent applications for postconviction relief on March 9, 2000 and October 10, 2002. Both were dismissed by the district court. The trial court's rulings dismissing Rowley's applications for postconviction relief were affirmed on appeal. See Rowley v. State, No. 01-1358 (Iowa May 3, 2002); Rowley v. State, No. 5-164/04-0799 (Iowa Ct.App. April 28, 2005).
While Rowley's appeal from the dismissal of his October 10, 2002 application for postconviction relief was pending, he filed a motion to correct the sentence imposed on December 23, 1996. Rowley's motion alleged that he was illegally sentenced because willful injury is a lesser-included offense of second-degree murder. See Iowa Code section 701.9 (no person shall be convicted of a public offense which is necessarily included in another public offense for which the person is convicted). The State filed a resistance, claiming Rowley's pending appeal of the dismissal of his October 10, 2002 application for postconviction relief deprived the district court of jurisdiction to consider Rowley's motion. The State also alleged Rowley was barred from challenging the legality of his sentence because he failed to raise the issue in earlier postconviction proceedings. The State failed to cite any legal authority supporting its position in either its resistance or any supporting brief.
On August 2, 2004, the district court entered an order overruling Rowley's motion to correct illegal sentence. The trial court's order stated:
The defendant currently is on appeal on a postconviction relief action involving the same sentence which he has subsequently moved to correct.
The appeal is pending, which involves an attack upon the sentence in question.
The appropriate manner to attack an alleged illegal sentence is by a postconviction relief action, which Rowley has submitted to the Court which is presently on appeal.
Accordingly, the Court is without any jurisdiction to proceed on the present motion. The defendant's motion to correct an alleged sentence is hereby OVERRULED.
On appeal Rowley raises the following issue:
"The District Court Improperly Denied Motion to Correct An Illegal Sentence."II. Disposition.
The appellate record in No. 5-164/04-0799 indicates we dismissed Rowley's appeal from the trial court's ruling dismissing his October 10, 2002 application for postconviction relief. The record also indicates procedendo issued on June 28, 2005. Because the jurisdictional issue underlying the trial court's ruling dismissing Rowley's motion is moot, we remand this case to the district court for a ruling on the merits of Rowley's motion. We decline to consider the State's arguments in support of the trial court's ruling because the issues were not raised, argued, or ruled on below. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).