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State v. Bender

Court of Appeal of Iowa

May 30, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
PERRY BERNARDO BENDER, Defendant-Appellant.

         Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge (sentencing order), and Angela L. Doyle, District Associate Judge (nunc pro tunc order).

         Defendant appeals his sentence on a conviction for willful injury.

          Kevin Hobbs, West Des Moines, for appellant.

          Perry B. Bender, Rockwell City, appellant pro se.

          Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Ricki N. Osborn, County Attorney, for appellee.

          Considered by Doyle, P.J., Mullins, J., and Sackett, S.J. [*]

          SACKETT, S.J.

         Defendant-appellant Perry Bender appeals contending that his plea on May 3, 2001 to willful injury, in violation of Iowa Code section 708.4(2) (2001), a Class "D" felony, should be voided because he was given an illegal sentence and the court improperly corrected the sentence in an order nunc pro tunc. He contends the nunc pro tunc order should be voided and he should be returned for resentencing. The State agrees that the initial sentence imposed was illegal and that an order nunc pro tunc was not the proper mechanism for correcting it. Bender, in a pro se brief, also contends that unless he and the State come to agreement at a sentencing hearing the court should vacate his plea. The State contends, however, that the issue should be found to be moot as Bender's sentence has been discharged and the issue now raised is not "of broad public importance likely to recur." The State further contends that there is no need to remand for resentencing because the sentence was a product of a plea agreement, not an exercise of the district court's discretion, and consequently the error is harmless. We vacate the nunc pro tunc order and remand for resentencing.

         SCOPE OF REVIEW.

         Our review of a sentence imposed in a criminal case is for correction of errors at law. Iowa R. App. P. 6.907; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002); State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). We will not reverse the decision of the district court absent an abuse of discretion or some defect in the sentencing procedure. Witham, 583 N.W.2d at 678.

         BACKGROUND AND PROCEEDURE.

         The facts are not in dispute. On May 2, 2001, Bender entered an Alford plea of guilty to Iowa Code section 708.4(2), a class "D" felony. The court committed Bender to the custody of the Director of the Iowa Department of Corrections for a term not to exceed five years, suspended Bender's sentence and placed him on probation for two years. No fine was imposed. Bender's probation was revoked in June of 2002 and an additional term of probation was ordered. On March 8, 2004, an order was entered relieving the Department of Correctional Services of supervision of Bender, but his probation was to continue until it expired as previously ordered, although it was transferred to the county sheriff on an informal, unsupervised basis.

         On November 9, 2011, Bender filed a motion to correct illegal sentence. He contends a condition of his Alford plea was an understanding that no fine would be imposed and the sentencing order so stated. He argues the sentence was illegal because Iowa Code section 902.9(5) says:

A class "D" felon, not an habitual offender, shall be confined for no more than five years, and in addition shall be sentenced to a fine of at least seven hundred fifty dollars but not more ...

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