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State v. Stivers

Court of Appeals of Iowa

March 8, 2017

STATE OF IOWA, Plaintiff-Appellant,
v.
ANTHONY STIVERS, Defendant-Appellee.

         Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.

         The State seeks discretionary review of the district court's ruling on a defendant's motion to correct an illegal sentence. AFFIRMED.

          Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellant.

          Philip B. Mears of Mears Law Office, Iowa City, for appellee.

          Considered by Vogel, P.J., and Tabor and Mullins, JJ.

          VOGEL, Presiding Judge.

         In this appeal, we are asked to decide whether a court may order multiple special sentences to be served consecutively, following a defendant's convictions for certain offenses that mandate the imposition of a special sentence under Iowa Code section 903B.2 (2006). Because we conclude the sentencing order in this case did not impose consecutive special sentences, we decline to address this question and affirm the district court's decision.

         I. Background Facts and Proceedings

         On October 30, 2006, Anthony Stivers pled guilty to two counts of lascivious acts with a child, in violation of Iowa Code section 709.8(1). On April 23, 2007, the sentencing court sentenced Stivers to two terms of imprisonment not to exceed five years. The court ordered the terms to run consecutively. Stivers's convictions also each carried a mandatory ten-year special sentence of supervision by the Iowa Department of Corrections (Iowa DOC) under section 903B.2. See Iowa Code § 903B.2 ("A person convicted of a misdemeanor or a class 'D' felony offense under chapter 709, section 726.2, or section 728.12 shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for a period of ten years, with eligibility for parole as provided in chapter 906."). The sentencing order states:

Pursuant to Iowa Code [section] 903B.2, the defendant is committed to the custody of the director of the Iowa Department of Corrections for a period of ten (10) years with eligibility for parole as provided in chapter 906. The special sentence shall commence upon completion of the sentence of confinement as if on parole.

         Because the sentences for Stivers's underlying convictions were to run consecutively, the Iowa DOC assumed two special sentences were imposed and they should run consecutively.[1]

         On January 27, 2016, Stivers filed a motion to correct an illegal sentence, claiming the sentencing court lacked the authority to order special sentences to run consecutively under section 903B.2. In ruling on Stivers's motion to correct an illegal sentence, the district court relied on a recent unpublished case from this court, State v. Maklenburg, No. 14-1268, 2015 WL 2394145 (Iowa Ct. App. May 20, 2015), as persuasive authority[2] and determined the sentencing court lacked the authority to order special sentences under 903B.2 to run consecutively.[3] In the alternative, the court also interpreted the sentencing order as imposing concurrent special sentences under 903B.2:

This court is also persuaded by an alternative approach that is inconsistent with Maklenburg but follows a generally accepted principle of Iowa law. In reading and interpreting [the] sentencing order, the court notes that the [sentencing court] was very clear that the sentences of imprisonment were to be consecutive. There is nothing in [the sentencing] order that indicates that [the court] intended to impose consecutive special sentences under 903B.2. Where the sentencing court does not definitively indicate an intention to run sentences consecutively, the sentences are concurrent. See State v. Jones, 299 N.W.2d 679 (Iowa 1980); Cleesen v. Brewer, 201 N.W.2d 474 (Iowa 1972).

         The supreme court granted the State's application for discretionary review and then ...


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