Appeal from the Iowa District Court for Marion County, Paul R. Huscher (guilty plea) and Darrell Goodhue (sentencing), Judges.
Defendant appeals his conviction and sentence on two counts of sexual abuse in the third degree.
Mark C. Smith, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Benjamin Parrott, Assistant Attorney General, and Ed Bull, County Attorney, for appellee.
Considered by Eisenhauer, C.J., Tabor, J., and Sackett, S.J. [*]
Appellant Joshua Scott Pearson pleaded guilty to two counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(c)(4) (2011). The district court entered judgment and sentence against him for violating two counts of Iowa Code section 709.4(2)(b). Pearson on appeal contends that this court should remand to the district court to correct a mistake of law in the judgment. The State concedes the error was made and it should be corrected on remand. However, the State argues it should be corrected by a nunc pro tunc order. We disagree with the State's position and vacate the judgment and sentence on Iowa Code section 709.4(2)(b) and remand to the district court to allow the district court to amend the judgment and sentence to reflect the defendant's intent in entering the plea.
On April 17, 2012, Pearson pleaded guilty to two counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(c)(4). He was charged with committing a sex act with a fifteen-year-old female and there was a written stipulation confirming the female's birth date and Pearson's birth date.
Pearson appeared for sentencing on June 8, 2012. The sentencing court recognized the victim was a fifteen-year-old girl. In a judgment and sentence order filed on June 8, 2012, the court entered judgment against Pearson for two counts of violating Iowa Code section 709.4(2)(b), which section criminalizes a sex act with a twelve or thirteen year old. Iowa Code section 709.4(2)(c)(4) is not a forcible felony. See Iowa Code § 702.11(2)(c). Iowa Code section 709.4(2)(b) is a forcible felony. Pearson appealed on June 13, 2012.
It is agreed that there should be a remand to the district court. The only question is whether the district court should be directed to correct a mistake of law or to enter an order nunc pro tunc to correct a clerical error.
In support of his position Pearson relies primarily on State v. Johnson, 744 N.W.2d 646, 649 (Iowa 2008). The State argues that we should follow the course of the court in State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995), and affirm the judgment and remand to the district court with instruction to correct what the State argues is a clerical error. Pearson disagrees contending a court may not use a nunc pro tunc ...