No. 5-256 / 04-0951Court of Appeals of Iowa.
Filed July 13, 2005
Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge.
Ronald Flowers appeals from the denial of his motion to correct an allegedly illegal sentence. AFFIRMED.
Edward Bull of Bull Law Office, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, Matthew Wilber, County Attorney, and Christopher Wilson, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vogel and Miller, JJ.
MILLER, J.
Ronald Flowers appeals from the denial of his motion to correct the sentence imposed following his guilty pleas to assault with a dangerous weapon, felony eluding, and arson in the third degree. He claims the district court imposed an illegal sentence. He also claims counsel rendered ineffective assistance in connection with the sentencing hearing. Finding no merit to either claim, we affirm.
In January 2001 the State charged with Flowers with robbery in the second degree and eluding a pursuing law enforcement vehicle. Flowers pled guilty to an amended charge of theft in the first degree, but then filed a motion in arrest of judgment. The State additionally charged Flowers with arson in the second degree. Flowers’s motion in arrest of judgment was sustained and the original charges of robbery in the second degree and eluding were reinstated, and the later charge of arson in the second degree went forward as well.
Flowers reached a plea agreement with the State and in January 2002 pled guilty to assault with a dangerous weapon in violation of Iowa Code sections 708.1(3) and 708.2(3) (2001), an aggravated misdemeanor; eluding a pursuing law enforcement vehicle in violation of section 321.279(3)(a), a class “D” felony; and arson in the third degree in violation of section 712.4, an aggravated misdemeanor. When Flowers was sentenced in December 2002, the district court imposed sentences including, in relevant part, concurrent terms of imprisonment of two years, five years, and two years respectively.
Flowers immediately appealed, but a month later voluntarily dismissed his appeal. In October 2003 he filed in the district court a motion for correction of sentence, citing Iowa Rule of Criminal Procedure 2.24(5)(a). Flowers claimed his pleas of guilty had been tendered pursuant to Iowa Rule of Criminal Procedure 2.10, under a plea agreement conditioned upon the court granting suspended sentences and probation; the imposition of terms of imprisonment constituted a breach of the plea agreement by the State and the district court; the sentences were therefore illegal; and he was entitled to have the sentences corrected to grant him probation. Following a hearing, in November 2003 the district court found Flowers had not established that his pleas were conditioned upon a grant of probation, concluded the court was within its discretion in imposing imprisonment, and overruled Flowers’s motion. In June 2004 our supreme court treated certain recent filings by Flowers as a request for delayed appeal from the court’s denial of his motion for correction of sentence, and granted a delayed appeal.
On appeal from the district court’s denial of his motion to correct an allegedly illegal sentence Flowers raises two claims. First, he claims the district court erred by imposing an illegal sentence. Second, he claims counsel rendered ineffective assistance by not requesting a recess of the sentencing hearing to clarify whether his pleas of guilty were conditioned upon the court imposing an allegedly agreed-to sentence which suspended the terms of imprisonment and granted probation.
We seriously doubt that we have jurisdiction to entertain the merits of either of Flowers’s two claims. Although he was allowed a delayed appeal from a November 2003 ruling denying his motion to correct an allegedly illegal sentence, neither of his claims on appeal are directed at that decision. Instead, both claims involve the December 2002 sentencing hearing and resulting judgment and sentence, a judgment from which Flowers appealed but then voluntarily dismissed his appeal. Assuming, without so deciding, that we have jurisdiction to entertain the present claims, we proceed to do so.
Flowers first claims the district court erred by imposing an illegal sentence. We review challenges to the illegality of a sentence for correction of errors of law. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).
“Our cases are clear that, to be `illegal’ for purposes of rule [of criminal procedure] 23(5)(a) [now rule 2.24(5)(a)], the sentence must be one not authorized by statute.” Id. However, the sentences imposed by the district court in this case are authorized by statute. See Iowa Code § 902.9(5) (providing for confinement for no more than five years for a class “D” felony) id. § 903.1(2) (providing for imprisonment not to exceed two years for an aggravated misdemeanor). We conclude the sentences imposed by the district court are not “illegal.” We further conclude counsel therefore did not breach an essential duty by not objecting to the sentences as illegal, and thus did not render ineffective assistance in this respect.
Flowers somewhat more specifically claims that the sentences imposed by the district court were illegal because his guilty pleas were based on an agreement with the State, binding on the court, that he would be granted suspended sentences and probation. Although for reasons previously stated his claim does not in fact involve any claim of an “illegal” sentence, we will proceed to address the claim’s underlying substance.
In conducting the guilty plea proceeding the district court informed Flowers it had been advised the parties had reached a plea agreement. After reviewing certain charging concessions made by the State, the court then reviewed with the parties the court’s understanding of the plea agreement. It noted it understood that Flowers was pleading guilty to the three identified crimes, and then in relevant part stated it understood the State agreed that two two-year sentences and a five-year sentence which would be imposed
will all run together at the same time, concurrently, and further agrees that if you cooperate with the insurance company . . . on the loss as a result of the arson . . . then the State will recommend that your sentences be suspended and you’d be placed at the residential correctional facility.
(Emphasis added). Upon inquiry by the court, Flowers stated he understood the agreement and agreed to it.
Near the end of the plea proceeding, in its colloquy with Flowers concerning the rights he was giving up by pleading guilty the court inquired:
And we know there’s been some promises made to get you to plead guilty. We’ve talked about those; the plea agreement as far as reducing the charges down, the sentencing agreement and the fact that the sentences will run concurrently and that the probation at the RCF will be the recommendation if the — if you cooperate on the arson matter. Other than those matters we’ve already discussed, has anything else or anyone else been told to you or promised to you to get you to plead guilty?
(Emphasis added). Flowers responded in the negative.
At the sentencing hearing the State informed the court that Flowers had cooperated as he was required to do in order to secure the State’s recommendation for suspended sentences and probation. The State requested that the sentences be suspended and that Flowers be placed on supervised probation for a period of two years. Counsel for Flowers then stated, “I thought it was a Rule 9, but maybe it wasn’t, at the time that the plea was entered.”[1] The court responded, “I don’t believe it was a Rule 9.”[2] Based in large part upon Flowers’s extensive criminal record the court declined to suspend the prison sentences.
In ruling on Flowers’s motion to correct an allegedly illegal sentence the district court determined Flowers had “not established that his plea was entered conditionally under Rule 2.10 or the old Rule 9,” the State had upheld its portion of the plea bargain by recommending probation, and the court had acted within its discretion in imposing imprisonment. The district court’s finding that the plea agreement was not conditioned upon the court granting suspended sentences and probation is supported by substantial evidence, and we find no error in the court’s resulting conclusions. We further necessarily conclude counsel did not breach an essential duty by not objecting to the sentences as violating the plea agreement, and therefore did not render ineffective assistance in this respect.
We affirm the district court’s ruling denying Flowers’s motion to correct an allegedly illegal sentence. In doing so we conclude that any claim or issue raised by Flowers and not expressly addressed herein is not preserved, is waived, is controlled by our decision on the issues expressly addressed, or is without merit.
AFFIRMED.