This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge. Defendant appeals a district court ruling denying his motion to correct an illegal sentence on the ground it was moot because he had discharged his sentence.
Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Patrick Jennings, County Attorney, and Mark Campbell, Assistant County Attorney, for appellee.
Considered by Potterfield, P.J., Bower, J., and Eisenhauer, S.J.[*]
Defendant appeals the denial of his motions to correct an illegal sentence and in arrest of judgment. The motion in arrest of judgment was untimely, and we do not consider the issues raised in the motion. We affirm the decision of the district court denying defendant's motion to correct an illegal sentence on the ground the issue was moot.
I. Background Facts & Proceedings
This case has a complicated procedural history. In 1997 Douglas Kurtz was charged with (Count I) possession of methamphetamine with intent to deliver, (Count II) failure to affix a drug tax stamp, (Count III) possession of marijuana with intent to deliver, and (Count IV) keeping a dwelling for possession of controlled substances. The State alleged Counts I and III were second offenses, and for Counts I, II, and III, Kurtz was an habitual offender.
Kurtz entered into a plea agreement in which he pled guilty to possession of methamphetamine with intent to deliver, second offense, in violation of Iowa Code sections 124.401(1)(c)(6) and 124.411 (1997), and possession of marijuana with intent to deliver, second offense, in violation of sections 124.401(1)(d) and 124.411. The State agreed to dismiss the other charges and the habitual offender enhancement. The parties agreed Kurtz would be sentenced to terms of incarceration not to exceed ten years and five years, to be served consecutively.
Kurtz entered his guilty pleas on July 14, 1997. The court advised him there was a mandatory minimum prison term of one-third of the sentence on the charge of possession of methamphetamine with intent to deliver. The court also stated it would be bound by the plea agreement for purposes of sentencing. Kurtz waived his right to file a motion in arrest of judgment, and the case immediately proceeded to sentencing. The court entered sentence in accordance with the plea agreement, to ten years and five years, to be served consecutively. The order did not mention the mandatory minimum. Kurtz appealed but later withdrew his appeal.
On March 12, 2004, Kurtz filed a motion to correct an illegal sentence, claiming the court had failed to impose the one-third mandatory minimum sentence on his conviction for possession of methamphetamine with intent to deliver. See Iowa Code § 124.413 (providing a defendant convicted of violating section 124.401(1)(c), as defendant was here, is required to serve a minimum period of one-third of the maximum indeterminate sentence provided by law). Kurtz asked to be resentenced. On May 3, 2004, the district court entered an order overruling the motion to correct an illegal sentence.
Kurtz filed a motion to reconsider the court's ruling. On May 27, 2004, the court entered an order stating the failure to impose a mandatory minimum sentence was a clerical error or oversight which could be corrected at any time under Iowa Rule of Criminal Procedure 2.23(3)(g). The court revised the ...