Opinion
No. 2-528 / 01-1763.
Filed November 15, 2002.
Appeal from the Iowa District Court for Polk County, JOEL D. NOVAK, Judge.
Trader appeals his third-degree burglary conviction, challenging the enhancement of his sentence and the failure to credit him for time spent in a residential correctional facility. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and ZIMMER and VAITHESWARAN, JJ.
Chadwick Trader contends his sentence for third-degree burglary is illegal. We affirm.
I. Background Facts and Proceedings
Trader was charged with and entered an Alford plea to third-degree burglary for breaking into a car and stealing some property. See Iowa Code section 713.6A (1999). At the plea proceeding, the district court advised him that the maximum punishment for the crime would be a prison term not exceeding five years and a fine of between $750 to $7500. Before the sentencing hearing, section 713A.6A was amended to make first offense third-degree burglary of an unoccupied vehicle an aggravated misdemeanor rather than a felony. Iowa Code section 713.6A (2001 Supp.)The statute retained the felony classification for second or subsequent offenses.
An Alford pleais a variation of a guilty plea where the defendant does not admit participation in the acts constituting the crime but consents to the imposition of a sentence. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970); State v. Burgess, 639 N.W.2d 564, 567 n. 1 (Iowa 2001).
The amended code section reads as follows:
713.6A Burglary in the third degree
1. All burglary which is not burglary in the first degree or burglary in the second degree is burglary in the third degree. Burglary in the third degree is a class "D" felony, except as provided in subsection 2.
2. Burglary in the third degree involving a burglary of an unoccupied vehicle or motor truck as defined in section 321.1, or a vessel defined in section 462A.2 is an aggravated misdemeanor for a first offense. A second or subsequent conviction under this section is punishable under subsection 1.
Trader's presentence investigation report listed a prior conviction for third-degree burglary. The State overlooked this prior conviction; Trader was sentenced as a misdemeanant to a prison term not exceeding two years. A month after he was sentenced, the State realized its oversight and moved for reconsideration of the sentence. The court granted the motion and resentenced Trader as a felon to a prison term not exceeding five years. The court suspended the sentence and placed Trader on formal probation with a stipulation that he live at the Fort Des Moines Residential Correctional Facility. The court declined to give Trader credit on his sentence for time spent at this facility. On appeal, Trader challenges his enhanced sentence and the court's failure to credit him for time served at the facility.
II. Enhanced Prison Term
Trader contends the enhanced prison term is illegal for two reasons. First, he maintains ameliorative statutes, such as the amended version of Iowa Code section 713A.6A, are applicable to defendants who have not been sentenced prior to the effective date of the amendment. See Iowa Code § 4.13 (stating that, if a penalty is reduced by statutory amendment, the reduced penalty shall be applied to those who have not yet had a penalty imposed). Second, he argues that the State could not rely on his prior conviction to impose an enhanced sentence because the State did not refer to the prior conviction in its trial information.
With respect to the first argument, we note that section 713A.6A, as amended, is not an ameliorative statute as to Trader because it specifies that second-time offenders will be punished as felons. Therefore, we reject this argument.
As for the second argument, we agree with Trader that the State must make reference to a prior conviction in the trial information and must prove the conviction beyond a reasonable doubt before relying on it to enhance a sentence. See State v. Talbert, 622 N.W.2d 297, 301 (Iowa 2001); State v. Griffin, 135 N.W.2d 77, 78 (Iowa 1965). These strictures have not been violated here. Trader was charged with a felony. At the plea proceeding, he was advised of the sentence that applied to a felony. At resentencing, he was sentenced in accordance with the unammended statute governing his case. Therefore, his sentence was not illegal.
III. Credit for Time Served
The district court's resentencing order states: "Defendant shall receive credit against his/her prison sentence for time already served. Provided, however, that Defendant shall not receive any credit against his prison sentence for time spent at the Facility as part of this probationary sentence." Trader argues he should have received credit for time served at the Fort Madison Residential Correctional Facility.
Iowa Code section 907.3(3) provides that a person whose sentence is suspended and who is placed on probation under specified terms and conditions, including "commitment to a community correctional residential treatment facility to be followed by a term of probation", "may be given credit for such time served if the probation is revoked. Trader points out that his probation was revoked. Therefore, he maintains he is entitled to credit for time served at the residential correctional facility.
The problem with Trader's argument, however, is one of timing. Cf. 26th E.P. True v. City of West Des Moines, 638 N.W.2d 742, 743 (Iowa 2002) (noting issues raised by city were not ripe for review). Section 907.3(3) only entitles a person to credit for time served at a residential treatment facility if the person's probation is revoked. Trader's probation had not been revoked at the time of resentencing. Therefore, the district court was without power to afford him the credit he now seeks.
Although Trader's probation was revoked after the notice of appeal was filed in this case, the parties have included the probation revocation order in the record. Notably, the probation revocation order appears to afford Trader the credit he now seeks. The order does not include a limitation on receiving credit for time served at the residential facility, stating only, "Defendant is to receive credit for time already served."
We affirm Trader's judgment and sentence for third-degree burglary.