Opinion
No. 5-252 / 04-0858
Filed April 13, 2005
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers (plea) and Mark D. Cleve (sentencing), Judges.
Clayton Charles Smith appeals from his sentence as an habitual offender. SENTENCE VACATED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
I. Background Facts Proceedings
On February 3, 2004, the State charged Clayton Smith by trial information with third-degree burglary in violation of Iowa Code sections 713.1 and 713.6A (2003) (Count I), second-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(2) (Count II), and as an habitual offender in violation of Iowa Code sections 902.8 and 902.9(3) (Count III) after he was arrested for stealing a video game machine from the Boat House Restaurant in Davenport, Iowa. Thereafter, Smith agreed to plead guilty to Count II and admit to his prior convictions under Count III, and in return, the State agreed to dismiss Count I of the trial information.
To establish the factual basis for his guilty plea under Count II, Smith stated that he entered the Boat House Restaurant and took a video machine without permission of the owner. With regard to Count III, Smith acknowledged judgments of conviction for forgery and third-degree burglary entered on March 20, 2003. He also acknowledged entering a guilty plea on January 3, 2002, to second-degree theft with a resulting deferred judgment which was subsequently revoked on March 20, 2003. The court accepted Smith's guilty plea to Count II, and found he was an habitual offender as alleged in Count III. On April 29, 2004, the court sentenced Smith to serve a fifteen-year indeterminate term of imprisonment, suspended his fine, and ordered him to make victim restitution and pay applicable court costs. Smith appeals.
On appeal, Smith challenges the legality of his sentence as an habitual offender.
II. Standard of Review
An illegal sentence is void, and may be corrected at any time. State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). Our review is for correction of errors of law. Iowa R. App. P. 6.4.
III. Applicability of Habitual Offender Statute
Smith argues that because his convictions for the felonies underlying Count III were entered on the same date, he does not meet the statutory definition of an habitual offender, and his sentence was therefore illegal. The State argues that a "person who receives a deferred judgment on a felony charge, is placed on probation, but commits new crimes and does not successfully complete the probationary period, was `convicted' on the date he received the deferred judgment, for purposes of Iowa Code section 902.8." According to the State, Smith's January 3, 2002, deferred judgment counts as a previous felony conviction under the statute.
Iowa Code section 902.8 provides:
An habitual offender is any person convicted of a class "C" or a class "D" felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, by the law under which the person is convicted, it is so classified at the time of the person's conviction.
The purpose of the statute is "to punish violators who have not responded to the restraining influence of conviction and punishment." Woody, 613 N.W.2d at 218. The statute is aimed at persistent and repeated conduct rather than just the number of offenses. Patchette v. State, 374 N.W.2d 397, 400 (Iowa 1985).
Each succeeding conviction under the habitual offender statute "must be subsequent in time to the previous convictions, both with respect to commission and to conviction." State v. Hollins, 310 N.W.2d 216, 217 (Iowa 1981). Hollins rules out the use of separate but simultaneous convictions in determining the applicability of the habitual offender statute. Patchette, 374 N.W.2d at 400.
According to the presentence investigation report, Smith was charged with second-degree theft on July 13, 2001, and received a deferred judgment on January 3, 2002. On September 12, 2002, Smith was charged with third-degree burglary, second-degree theft, and two counts of forgery. Then on March 20, 2003, Smith's prior deferred judgment was revoked and he received a five-year prison sentence on that charge, and also received five-year sentences for the third-degree burglary charge and one of the forgery charges. All sentences were to be served concurrently. We therefore must determine whether Smith was "convicted" of theft for purposes of Iowa Code section 902.8 on January 3, 2002, when he received his deferred judgment. If his "conviction" did not occur until the deferred judgment was revoked, under the holding in Hollins, Smith would not qualify as an habitual offender.
The term "conviction" in our statutes may have different meanings within different contexts. State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986).
In the restricted or technical legal sense in which it is sometimes used, the word "conviction" includes the status of being guilty of, and sentenced for, a criminal offense, whether that status is established after confession of guilt by a guilty plea or after determination by a jury verdict upon an assertion of innocence. Stated otherwise technically the word means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to an ascertainment of his guilt. In its general and popular sense and frequently in its ordinary legal sense, the word "conviction" is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or a plea of guilty.
Id. (quoting State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970)). We have followed the more technical and relatively narrow meaning of "conviction" where it appears in statutes used to enhance punishment. Id.
The elements of a judgment in a criminal case include both an adjudication of guilt and imposition of sentence. State v. Farmer, 234 N.W.2d 89, 91-92 (Iowa 1975). When judgment is deferred, there is neither an adjudication of guilt nor an imposition of sentence. Id.
While we find the State's suggested interpretation of the term "conviction" in this context is consistent with the stated purpose of the statute, it nevertheless conflicts with the court's pronouncements in Hollins and Kluesner. To hold otherwise would require us to disregard those decisions as well as the understood implications of a deferred judgment.
Because there was no adjudication of guilt or imposition of a sentence incident to Smith's January 3, 2002, deferred judgment, we find Smith was not "convicted" for purposes of the habitual offender statute until March 20, 2003, the same date as his burglary and forgery convictions. See Iowa Code §§ 907.1(1), 902.8; see also Farmer, 234 N.W.2d at 91-92. Accordingly, we vacate Smith's sentence and remand for resentencing. See Woody, 613 N.W.2d at 218.