from the Iowa District Court for Marshall County, James C.
State seeks discretionary review of the district court's
ruling on a defendant's motion to correct an illegal
J. Miller, Attorney General, and William A. Hill, Assistant
Attorney General, for appellant.
B. Mears of Mears Law Office, Iowa City, for appellee.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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.
Background Facts and Proceedings
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
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.
the sentences for Stivers's underlying convictions were
to run consecutively, the Iowa DOC assumed two special
sentences were imposed and they should run
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 and determined
the sentencing court lacked the authority to order special
sentences under 903B.2 to run consecutively. 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).
supreme court granted the State's application for
discretionary review and then ...