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State v. Boner

Court of Appeal of Iowa

May 30, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
TONY EUGENE BONER, Defendant-Appellant.

         Appeal from the Iowa District Court for Taylor County, John D. Lloyd, Judge.

         Defendant appeals the district court decision denying his motion to correct an illegal sentence.

          Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Clinton L. Spurrier, County Attorney, for appellee.

          Considered by Vaitheswaran, P.J., Bower, J., and Mahan, S.J. [*]

          MAHAN, S.J.

         I. Background Facts & Proceedings.

         Tony Boner was charged with sexual abuse in the third degree, in violation of Iowa Code section 709.4(1) (2009), a class "C" felony. The State alleged Boner accosted a woman who was jogging and engaged in a sex act with her against her will.

         The State filed a motion seeking to amend the trial information to assert Boner should be subject to sentencing enhancements under sections 901A.2(3)[1]and 902.14(1)[2]. The State asserted the current charge should be considered a second offense because Boner had been convicted in 1991 of first-degree sexual abuse in Missouri, in violation of Missouri Revised Statutes section 556.100 (1990).

         The district court held a hearing on the motion to amend on December 22, 2010. Boner argued the Missouri statute did not substantially correspond to relevant Iowa statutes. The court ruled the State could amend the trial information to include the enhancements under sections 901A.2(3) and 902.14(1).

         The State then offered Boner a plea deal whereby he would plead guilty to third-degree sexual abuse, with the enhancement under section 901A.2(3), and the State would dismiss the allegation that he was also subject to an enhancement under section 902.14(1). Boner entered a guilty plea on the record. He admitted to a factual basis for the plea in the guilty plea proceedings. The district court accepted his guilty plea to third-degree sexual abuse, with the enhancement under section 901A.2(3). Boner was sentenced to a term of imprisonment not to exceed twenty-five years.

         On October 7, 2010, Boner filed a pro se motion to correct an illegal sentence, claiming the enhancement in section 901A.2(3) had been improperly imposed in his case. A hearing on his motion was held. The district court entered a written ruling denying the motion to correct an illegal sentence. Boner now appeals the district court decision denying his motion to correct an illegal sentence.

         II. Motion to Correct ...


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